CHAMBERS v. RUSSELL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DORIAN O. CHAMBERS, )

)

Petitioner )

)

v. ) 1:20CV498

)

LEOPOLD S.P. RUSSELL, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court is Petitioner Dorian O.

Chambers’ Verified Petition under the Hague Convention on the

Civil Aspect of International Child Abduction (the “Hague

Convention”) seeking the return of her minor child, Z.R. (Doc.

1.) Respondent, Leopold S.P. Russell, is Z.R.’s biological

father. Respondent brought Z.R. to the United States (“U.S.”)

from Jamaica and refuses to return him. Following a bench trial,

the court finds it should grant Petitioner’s request to order

the return of Z.R. to Jamaica.

I. BACKGROUND

Following the trial held on August 5, 2020, this court made

findings of fact orally in open court. (Minute Entry

08/05/2020.) Those facts are incorporated by reference herein.

The court finds additional facts from the verified pleadings, as

well as the evidence presented at the hearing. (Id.) Additional

factual findings relevant to Respondent’s affirmative defenses

are addressed in later portions of this Memorandum Opinion and

Order.

Petitioner is a citizen of Jamaica and the biological

mother of her son, Z.R. (Verified Petition (“Verified Pet.”)

(Doc. 1) ¶ 1; Doc. 1-3.) Respondent is Z.R.’s biological father

and a permanent resident of the United States. (Doc. 1-3; Minute

Entry 08/05/2020.) Respondent and Petitioner have never been

married to one another. (Minute Entry 08/05/2020.) Z.R. is

thirteen years old; he was born in 2007 in Jamaica and lived

there his whole life until Respondent removed Z.R. to the United

States in August 2019. (Verified Pet. (Doc. 1) ¶¶ 7–8, 11–12.)

After Z.R. was born, he stayed with Petitioner initially,

but then moved to a different town in Jamaica to stay with

Respondent. (Minute Entry 08/05/2020.) At the time, Petitioner

was completing her education as a registered nurse. (Id.) After

Petitioner finished her degree, she took physical custody of

Z.R., who was around two years old at the time. (Id.)

Petitioner and Respondent do not have a formal custody

order from any court. (Id.) Instead, until Z.R.’s removal in

August 2019, Petitioner and Respondent acted pursuant to their

custodial agreement whereby Petitioner had primary physical

custody of Z.R. and would supervise his day-to-day care. (Id.)

Petitioner would sometimes consult with Respondent about the

decisions she made regarding Z.R.’s upbringing, but often she

made a decision and then informed Respondent of her decision

after the fact. (Id.; Doc. 1-8 at 2.)1 It was agreed that Z.R.

would stay with Respondent during certain holidays and for

several weeks each summer. (Minute Entry 08/05/2020.) Respondent

provided monthly payments of between 15,000 to 20,000 Jamaican

Dollars to Petitioner for Z.R.’s benefit.2 (Id.) Respondent would

also provide other funds when Z.R. had special needs that arose.

(Id.) Respondent made those payments by depositing the funds

directly into Petitioner’s bank account. (Id.)

In 2018, Respondent left Jamaica and moved to the United

States. (Id.) At some point during that same time, Petitioner

began to seek new employment in the United Kingdom (“U.K.”).

(Id.) Petitioner found a job as healthcare worker in the U.K.

and was able to secure a visa for herself. (Id.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

2 Respondent testified that was between $100 to $200 United

States Dollars. (Minute Entry 08/05/2020.)

Petitioner planned to bring Z.R. with her to the U.K. (Id.)

Petitioner first applied for Z.R.’s visa in February 2019. (Id.)

In order to obtain a visa for Z.R., Petitioner was advised that

Respondent, as Z.R.’s father, would have to provide written

consent to Petitioner’s movement of Z.R. to the U.K. (Id.)

Respondent signed such a letter in February 2019. (Id.; Doc.

1-7; Verified Answer (Doc. 15) ¶ 9.) Z.R.’s first visa

application was rejected. (Minute Entry 08/05/2020.) Petitioner

appealed and was informed by the U.K.’s embassy in Jamaica that

Petitioner would have to either provide proof of a formal

custody order or some other evidence that she had sole

responsibility for Z.R.’s upbringing. (Id.) Petitioner had a

solicitor in Jamaica draft a new letter for Respondent to sign

to attest to Petitioner’s role in raising Z.R. (Id.) Respondent

never signed that letter. (Id.)

Petitioner moved to the U.K. and started her job on or

about March 21, 2019. (Id.) Petitioner made the decision to

leave Z.R. with family in Jamaica so he could finish his final

year of primary school. (Id.) Specifically, Petitioner decided

to leave Z.R. in the care of her niece, who was eighteen at the

time, and her nephew, who was twenty. (Id.) Petitioner’s sister

did not live with Z.R. and her children but did check on them

periodically. (Id.) Based on text messages admitted at trial,

the court finds that Respondent consented to Z.R. remaining in

Jamaica and suggested Petitioner’s niece as a temporary

custodian. (Id.)

Petitioner also had Z.R. take the entrance exam for a

school in Clarendon, Jamaica. (Id.; Doc. 1-8 at 3.) That school

was the next level beyond primary school and was close enough to

the residence of Petitioner’s sister that, after Z.R. returned

from his summer visit to Respondent, he could start there and

live with his aunt in Clarendon. (Minute Entry 08/05/2020.)

However, Petitioner still hoped to be able to bring Z.R. to the

U.K. with her after his summer visit to Respondent. (Id.)

Petitioner planned to reapply for Z.R.’s visa when she returned

to Jamaica in July 2019 for Z.R.’s primary school graduation.

(Id.; Doc. 1-8 at 4.)

Petitioner left for the U.K. in March 2019, leaving Z.R. in

the care of her niece and nephew. (Id.) Petitioner would speak

with Z.R. once or twice every day. (Id.) Petitioner continued to

pay rent and utilities in the house where Z.R. continued to live

with his cousins. (Id.) Petitioner returned to Jamaica in July

2019 for Z.R.’s primary school graduation. (Id.) Respondent also

came to Jamaica for Z.R.’s graduation. (Id.)

As he did during the summer,3 Z.R. was going to spend

several weeks with Respondent after his graduation in summer

2019. (Id.) Before Z.R. left for the U.S. on his visit,

Petitioner planned to take Z.R. back to the U.K. embassy to

reapply for his visa. (Id.) However, there was a confrontation

between Petitioner and Respondent after Z.R.’s graduation

ceremony, and Respondent took Z.R.’s passport, a necessary

document for Z.R.’s visa appointment at the embassy. (Id.) As a

result, Petitioner could not take Z.R. to the U.K. embassy for

his visa appointment in June 2019. (Id.) In late June 2019,

Respondent took Z.R. with him back to the U.S. for Z.R.’s annual

summer visit. (Id.) Petitioner returned to the U.K. for her job.

(Id.)

On August 15, 2019, Petitioner texted Respondent to ask

when Z.R. would return to Jamaica — Petitioner was planning on

setting up another visa appointment for Z.R. once he returned.

(Doc. 1-8 at 1, 4.) In response, Respondent texted “He will

return on August 28, 2019[.] As per usual[.]” (Doc. 1-8 at 1.)

Respondent actually brought Z.R. back earlier, because he had

3 Both Petitioner and Respondent testified, and this court

finds that the custody arrangement between Petitioner and

Respondent consisted of physical custody with Petitioner for the

majority of the year. Respondent had physical custody during

“holidays,” which included summer vacations.

decided to register Z.R. at a new school close to Respondent’s

family in St. Ann, Jamaica. (Id. at 2; Doc. 1-9 at 4; Verified

Answer (Doc. 15) ¶ 11.) Though Petitioner had made plans for

Z.R. to matriculate at another school in Clarendon so he could

live with Petitioner’s sister, Respondent unilaterally

implemented another plan. (Doc. 1-9 at 4.) Respondent was unable

to complete Z.R.’s registration at school, however, because he

did not have Z.R.’s immunization records. (Doc. 1-8 at 5.)4

Respondent removed Z.R. from Jamaica on or about August 21,

2019. (Verified Pet. (Doc. 1) ¶ 11; Doc. 1-8 at 15.) Respondent

brought Z.R. back to Respondent’s home in Concord, North

Carolina. (Verified Pet. (Doc. 1) ¶ 13.) Petitioner has asked

Respondent to return Z.R. to Jamaica in accordance with their

previous agreement and so Petitioner can arrange for Z.R. to

complete the U.K. visa process. (Minute Entry 08/05/2020.)

Respondent refused, telling Petitioner she would have to get a

“court order” to get him to return Z.R. to Jamaica. (Doc. 1-8 at

15.)

4 Once Respondent took Z.R. back to the U.S., he registered

him in school in North Carolina. Respondent stated he was able

to do so because he got Z.R. re-immunized. When asked why he

didn’t have Z.R. re-immunized in Jamaica, Respondent stated he

did not have time. (Minute Entry 08/05/2020.)

Petitioner filed her Verified Petition for Return of the

Child Under the Convention on the Civil Aspects of International

Child Abduction (The “Hague Convention”) on June 5, 2020.

(Verified Pet. (Doc. 1).) Petitioner sought a Temporary

Restraining Order (“TRO”) to prevent Respondent from removing

Z.R. from the Middle District of North Carolina until her

Verified Petition was resolved. (Doc. 2.) The court granted

Petitioner’s motion for a TRO. (Doc. 8.) After a hearing, where

Respondent was present, the parties consented to a preliminary

injunction pending resolution of Petitioner’s case. (Doc. 18;

Minute Entry 07/01/2020.)

After a limited period of discovery, the court held a

hearing during which it conducted an in camera examination of

Z.R. (Minute Entry 07/23/2020.)5 Counsel for both parties were

present for that examination, but the parties themselves were

not.

The court later conducted a bench trial on the Verified

Petition. (Minute Entry 08/05/2020.) In light of the COVID-19

pandemic and travel difficulties for Petitioner, the parties

consented to conducting the bench trial over video conferencing

software. Petitioner testified, Respondent testified, and

5 Respondent filed a Motion to Dismiss the action a week

prior to the bench trial. (Doc. 23.) That motion will be denied

as moot.

Respondent’s wife testified. At the conclusion of the bench

trial, the court announced its initial finding that the Verified

Petition should be granted. (Id.) The court also reemphasized

that the preliminary injunction would remain in effect until

this Memorandum Opinion and Order was entered. (Id.)

II. ANALYSIS

The Hague Convention, as implemented through the

International Child Abduction Remedies Act (“ICARA”), 22 U.S.C.

§ 2001 et seq., was created with the purpose “to protect

children internationally from the harmful effects of their

wrongful removal or retention and to establish procedures to

ensure their prompt return to the State of their habitual

residence, as well as to secure protection for rights of

access.” International Child Abduction Convention, 1988 WL

411501 (“Hague Convention”). “[T]he primary purpose of the Hague

Convention is ‘to preserve the status quo and to deter parents

from crossing international boundaries in search of a more

sympathetic court.’” Miller v. Miller, 240 F.3d 392, 398 (4th

Cir. 2001) (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400

(6th Cir. 1993)). A court considering a Hague Convention

petition (“Hague petition”) has jurisdiction only over the

wrongful removal or retention claim. See Hague Convention, art.

16.

In order to secure the return of an abducted child, a

petitioner must prove by a preponderance of the evidence that

the child “has been wrongfully removed or retained within the

meaning of the Convention.” 22 U.S.C. § 9003(e)(1). A petitioner

must prove the following to establish a prima facie case of

wrongful removal: “(1) the child was ‘habitually resident’ in

the petitioner’s country of residence at the time of removal,

(2) the removal was in breach of the petitioner’s custody rights

under the law of his home state, and (3) the petitioner had been

exercising those rights at the time of removal.” Bader v.

Kramer, 484 F.3d 666, 668 (4th Cir. 2007) (“Bader II”). Once a

petitioner has made out a prima face case of wrongful removal,

“return of the child is required unless the respondent

establishes one of four defenses.” Id.

A. Habitual Residence

The first prong of the wrongful removal prima facie case

requires the court to determine the location of the child’s

habitual residence. Bader II, 484 F.3d at 668. The burden is on

the petitioner to prove by a preponderance of the evidence that

“the child was ‘habitually resident’ in the petitioner’s country

of residence at the time of removal.” Id.

As the Fourth Circuit stated in Miller v. Miller, 240 F.3d

392, 400 (4th Cir. 2001), “[t]he Hague Convention does not

define ‘habitual residence.’” The court, looking to its sister

circuits, concluded that “there is no real distinction between

ordinary residence and habitual residence.” Id. “A person can

have only one habitual residence. On its face, habitual

residence pertains to customary residence prior to the removal.

The court must look back in time, not forward.” Id. (quoting

Friedrich, 983 F.2d at 1401). “This is a fact-specific inquiry

that should be made on a case-by-case basis.” Id. Importantly,

“a parent cannot create a new habitual residence by wrongfully

removing and sequestering a child.” Id.

“Federal courts have developed a two-part framework to

assist in the habitual residence analysis.” Maxwell v. Maxwell,

588 F.3d 245, 251 (4th Cir. 2009). First, the court must

determine “whether the parents shared a settled intention to

abandon the former country of residence.” Id. (citing Mozes v.

Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). Second, the court

determines “whether there was ‘an actual change in geography’

coupled with the ‘passage of an appreciable period of time, one

sufficient for acclimatization by the [child] to the new

environment.’” Id. (quoting Papakosmas v. Papakosmas, 483 F.3d

617, 622 (9th Cir. 2007)).

That two-part framework is less rigid following the Supreme

Court’s decision in Monasky v. Taglieri, ____ U.S. ____, 140 S.

Ct. 719 (2020). In that decision, the Court held “that a child’s

habitual residence depends on the totality of the circumstances

specific to the case. An actual agreement between the parents is

not necessary to establish an infant’s habitual residence.” Id.

at 723. Monasky involved a question of habitual residence for a

young child born in Italy. The child’s parents had come to Italy

from the United States and no definite plans to return. The

father was abusive towards the mother, and eventually the mother

left Italy and returned to the U.S. with the child. The father,

still in Italy, petitioned for the child’s return. The district

court ordered the return of the child, finding that the parents

never shared an intent for the child to move to the United

States. The Supreme Court reversed, finding that the district

court had relied too much on the shared intent of the parties

when the inquiry is fact intensive. The Court stated that “[n]o

single fact . . . is dispositive across all cases.” Id. at 727.

However, the Court also noted that “[c]ommon sense suggests that

some cases will be straightforward: Where a child has lived in

one place with her family indefinitely, that place is likely to

be her habitual residence.” Id.

The court finds that, even in light of Monasky, an analysis

of Petitioner and Respondent’s intent is still appropriate,

though not dispositive. First, Monasky did not hold that intent

does not matter, only that it is not an imperative.6 Second, the

facts in Monasky distinguish it from this case. In Monasky, the

Court was dealing with parents who had yet to develop any

informal custody agreement for their infant child.7 As explained

more fully below, Petitioner and Respondent’s actions in August

2019 evinced a shared intent for Z.R. to remain in Jamaica, as

he had done for his thirteen years prior, unless the parties

agreed otherwise. Those actions in August 2019 were part of a

decade of shared custody consistent with a shared intent that

Z.R. remain in Jamaica. Finally, since Monasky did not overturn

the two-prong approach outright,8 this court will still apply it,

cognizant of the Supreme Court’s directive that the inquiry is

fact intensive and that the Hague Convention exists “to ensure

that custody is adjudicated in what is presumptively the most

appropriate forum — the country where the child is at home.” Id.

at 727.

6 The Court cited a United Kingdom opinion approvingly that

stated “[a] child's habitual residence depends on numerous

factors with the purposes and intentions of the parents being

merely one of the relevant factors.” Monasky, 140 S. Ct. at 728

(internal quotations and alterations omitted).

7 “The bottom line: There are no categorical requirements

for establishing a child's habitual residence — least of all an

actual-agreement requirement for infants.” Monasky, 140 S. Ct.

at 728.

8 No court in the Fourth Circuit has yet to address Monasky.

The court will first address the parties’ intent and then

turn to the geographical location analysis.

1. Shared Parental Intent

“[T]he first question is whether the parents shared a

settled intention to abandon the former country of residence.”

Maxwell, 588 F.3d at 251. Again, a “person can have only one

habitual residence. On its face, habitual residence pertains to

customary residence prior to the removal. The court must look

back in time, not forward.” Miller, 240 F.3d at 400 (quoting

Friedrich, 983 F.2d at 1401).

Though Respondent conceded this prong at the initial

hearing, he now contests it. Respondent argues that parental

intent was a “moving target,” meaning the new country of

habitual residence was no longer Jamaica. The court disagrees.

The evidence reveals that there was never a shared parental

intent to abandon Jamaica — quite the opposite. The evidence

reveals a shared intent for, and expectation of Z.R. remaining

in Jamaica. Respondent is correct that Petitioner and Respondent

discussed future plans for Z.R., which included leaving Jamaica

to move to the U.K. with Petitioner.9 However, the inquiry is

backwards looking, not forward.

First, the court finds that Petitioner’s country of

residence at the time of Z.R.’s removal was Jamaica. Petitioner

was working in the U.K. pursuant to a work visa — her

immigration status in that country was not permanent. (Minute

Entry 08/05/2020.) She was and remains a Jamaican citizen. (Id.)

Petitioner maintained close contact with Z.R. and other family

members in Jamaica. (Id.) Petitioner directed Z.R.’s care from

the U.K., to include arranging housing, funding, schooling, and

supervision. (Id.) Petitioner returned to Jamaica once between

March and August 2019 and has made plans to return there upon

Z.R.’s own return. (Id.) Petitioner has continued to try and

secure Z.R.’s U.K. visa so he can join her in the U.K.;

Petitioner’s plan was not to leave Jamaica without Z.R. (Id.) No

evidence was presented at trial that Petitioner plans to

9 Although Respondent testified that the parties had agreed

in the past that Z.R. would reside with him after primary

school, this court rejects that testimony, certainly to the

extent it suggests Petitioner agreed to Z.R. remaining in the

United States beyond his summer visit. However, Respondent had

previously consented to Z.R. traveling to the U.K. with

Petitioner. Even though Z.R. was initially not able to do so,

both Petitioner and Respondent had registered Z.R. for school in

Jamaica; this court finds the parties agreed that Z.R. would

remain in Jamaica until the visa issue was resolved.

permanently remain in the U.K. The court finds that Petitioner’s

residence was still Jamaica at the time of Z.R.’s removal.

Second, the evidence conclusively establishes that Z.R. was

habitually resident in Jamaica, Petitioner’s residence. Z.R.

lived in Jamaica from his birth until his removal. (Verified

Pet. (Doc. 1) ¶ 7.) Under Petitioner and Respondent’s informal

custody agreement, Z.R. would visit Respondent, but would always

return to Petitioner. (Minute Entry 08/05/2020.) In the summer

of 2019, when Z.R. visited Respondent in the U.S., there is no

question that both parents intended for Z.R. to return to, and

stay in Jamaica until his U.K. visa was finalized. Indeed,

Respondent told Petitioner that Z.R. would return to Jamaica on

August 28, 2019 “[a]s per usual.” (Doc. 1-8 at 1.) Further, the

court notes Respondent disagreed with Petitioner about where

Z.R. should live in Jamaica, and Respondent made efforts to

register Z.R. for secondary school in St. Ann, Jamaica, near his

own family. (Id. at 2.) As Respondent texted Petitioner, “[Z.R.]

will be staying with my family until you finish process whatever

it is you are doing[.]” (Id.) There is no question that

Petitioner and Respondent both intended for Z.R. to remain in

Jamaica in August 2019. This court finds that Petitioner and

Respondent agreed Z.R. would remain in Jamaica until the visa

issue was resolved. However, the parties had not reached

agreement as to where Z.R. would attend school or with whom he

would reside while awaiting the visa.

As evidence of shared intent to abandon Jamaica, Respondent

testified about a supposed informal custody agreement that

differed from the one described by Petitioner in her testimony.

According to Respondent, the plan was that Z.R. would live with

Respondent full-time after Z.R. finished primary school.

However, Respondent’s own behavior during August 2019 belies

that assertion. Respondent said Z.R. would return to Jamaica on

August 28, 2019, “[a]s per usual,” (Doc. 1-8 at 1). When

Respondent returned Z.R. to Jamaica in August 2019, he attempted

to register him at a school in St. Ann, Jamaica, before

Respondent returned to the U.S, (id. at 2). Even if there was

another custody arrangement in the past, Respondent’s behavior

in August 2019 establishes that that agreement was no longer in

force.

Respondent’s focus on future intentions is misplaced. For

one, those intentions were not shared. For another, Petitioner

and Respondent’s shared intentions at the time of removal were,

as Respondent himself admitted, that Z.R. would return to

Jamaica. That intent manifested itself not only in August 2019,

but in the decade of shared custody prior to that.

2. Actual Change in Geography

In determining a child’s habitual residence, a court must

also determine “whether there was ‘an actual change in

geography’ coupled with the ‘passage of an appreciable period of

time, one sufficient for acclimatization by the [child] to the

new environment.’” Maxwell, 588 F.3d at 251 (quoting Papakosmas,

483 F.3d at 622).

The question here “is not simply whether the child’s

life in the new country shows some minimal degree of

settled purpose,” but whether the “child’s relative

attachments to the countries have changed to the point

where [ordering the child’s return] would now be

tantamount to taking the child out of the family and

social environment in which its life has developed.”

Id. at 253–54 (quoting Mozes, 239 F.3d at 1081). “Federal courts

have considered school enrollment, participation in social

activities, the length of stay in the relative countries, and

the child’s age to determine the extent of a child’s

acclimatization to the new country of residence.” Id. at 254.

Again, a parent cannot create a new habitual residence by

wrongfully removing a child from the child’s original habitual

residence. Miller, 240 F.3d at 400.

Though Z.R. had visited the U.S. in summer 2019, he had

come back to Jamaica in August 2019 after less than two months.

Z.R. lived in Jamaica from his birth in 2007 until he was

removed by Respondent in August 2019. Z.R. was registered to

begin a secondary school in Clarendon, Jamaica, where

Petitioner’s family would care for him.

Though Z.R. has developed some attachment to the U.S. after

his removal by Respondent, those attachments are not so great

that they overcome his life-long attachments to Jamaica. Z.R.

has made some friends in the U.S. and completed a year of school

in the U.S. from 2019-2020. However, both Respondent and his

wife testified that Z.R. has only a few new friends in the U.S.

(Doc. 21-1 at 59; Minute Entry 08/05/2020.)10 Z.R.’s limited time

in the U.S. has not created ties so strong that his return to

Jamaica would be “tantamount to taking the child out of the

family and social environment in which its life has developed.”

Maxwell, 588 F.3d at 253–54; cf. Rodriguez Palomo v. Howard, 426

F. Supp. 3d 160, 174 (M.D.N.C. 2019), aff’d, 812 F. App’x 155

(4th Cir. 2020) (child had been in Spain long enough to

acclimate). Far from it, Z.R.’s return to Jamaica will return

him to the family and life he has known for almost all of his

thirteen years.11

10 During his deposition, Respondent could not name any of

Z.R.’s new friends. (Doc. 21-1 at 59.) This suggests that his

connection with these friends is not nearly as great as

Respondent would have the court believe.

11 Finally, the court also notes that Z.R. has over-stayed

his U.S. visitor’s visa, further proof that Jamaica is his

habitual residence. (Minute Entry 08/05/2020.)

Regardless of whether Z.R. has created sufficient ties in

the U.S. during his short time here, a parent cannot create a

new habitual residence by wrongfully removing a child from

another. Miller, 240 F.3d at 400. The “‘primary purpose’ of the

Convention [is] ‘to preserve the [pre-removal] status quo.’”

White v. White, 718 F.3d 300, 307 (4th Cir. 2013) (quoting

Miller, 240 F.3d at 398). Even if Z.R. had developed greater

ties in the U.S. since his removal, Respondent cannot subvert

the Hague Convention’s primary purpose by wrongfully removing

Z.R. and creating a new habitual residence.

“Where a child has lived in one place with [his] family

indefinitely, that place is likely to be [his] habitual

residence.” Monasky, 140 S. Ct. at 727. Such is the case here.

Therefore, the court finds that Z.R.’s habitual residence is

Jamaica.

B. Breach of Custody Rights in Home State

The law of the child’s habitual residence governs custody

rights. See Hague Convention, art. 3. In this case, Jamaican law

governs, because Jamaica is Z.R.’s habitual residence is

Jamaica. “[C]ourts have repeatedly assumed rights of custody for

purposes of Article 3 of the Convention means rights of custody

at the time of removal.” White, 718 F.3d at 307.

According to Jamaican law, “any person who is the parent or

legal guardian of a child, or who is legally liable to maintain

the child, shall be presumed to have the custody of the child,

and as between father and mother, neither shall be deemed to

have ceased to have such custody by reason only that the father

or mother has deserted, or otherwise does not reside with, the

other parent and the child . . . .” Jamaican Child Care and

Protection Act § 2(4)(a).12

Respondent contends, and Petitioner seems to concede, that

Respondent and Petitioner have equal custody rights under

Jamaican law. (Minute Entry 08/05/2020; Doc. 21 at 8.)

Respondent argues that this means there could be no breach of

Petitioner’s custody rights since Respondent was simply

exercising his.

The first Fourth Circuit opinion in Bader v. Kramer is

instructive for situations where a petitioner shares custody

rights with a respondent in the absence of a formal custody

order. In Bader, the Fourth Circuit reversed a district court’s

conclusion that Bader, the petitioning father, did not have

custody rights that were violated when Kramer, the respondent

mother, took their child to the United States from Germany, and

12 Petitioner provided a digital copy of the Jamaican Child

Care and Protection Act. (Doc. 1-12.)

refused to return him. Bader v. Kramer, 445 F.3d 346, 351 (4th

Cir. 2006) (“Bader I”). Bader and Kramer had begun divorce

proceedings in Germany prior to the child’s removal. The German

court had not yet made a custody determination, but that court

had set child support and visitation guidelines for Bader. Since

no custody order was in force at the time of removal, the German

Central Authority noted that both parents still had “parental

responsibility for the child pursuant to Section 1626 of the

German Civil Code (BGB).” Id. at 348. The Fourth Circuit agreed,

holding

it is clear that Bader retained at least joint custody

over C.J.B. because no competent German court has

entered an order granting Kramer sole custody. Thus,

we remand the case to the district court for an

expeditious determination of whether Bader was

exercising those custody rights and whether any

defenses apply under the Hague Convention.

Id. at 351.

As in Bader I, the evidence in this case conclusively

establishes that Petitioner had “retained at least joint

custody” over Z.R. Under Jamaican law, a parent “shall be

presumed to have the custody of the child, and as between father

and mother, neither shall be deemed to have ceased to have such

custody by reason only that the father or mother . . . does not

reside with, the other parent and the child . . . .” Jamaican

Child Care and Protection Act § 2(4)(a). Respondent’s reliance

on his own custody rights ignores the fact that Petitioner also

has custody rights. Respondent violated those custody rights

when he removed Z.R. from his habitual residence, in

contravention of the parties’ original custodial agreement, and

repeatedly refused to return him. The only remaining question

then is whether Petitioner was actually exercising her custody

rights at the time of removal.

C. Whether Petition Was Actually Exercising Custody

Rights

“[A] showing of actual exercise is a necessary element of a

claim of wrongful removal under the Hague Convention. Despite

this requirement, the Hague Convention does not define

exercise.” Bader II, 484 F.3d at 670. Courts “liberally find

‘exercise’ whenever a parent with de jure custody rights keeps,

or seeks to keep, any sort of regular contact with his or her

child.” Id. at 671 (quoting Friedrich, 78 F.3d at 1065); Walker

v. Walker, 701 F.3d 1110, 1121 (7th Cir. 2012) (noting that the

“actually exercising” standard is a “liberal” one).

[A] person [who] has valid custody rights to

a child under the law of the country of the

child’s habitual residence . . . cannot fail

to “exercise” those custody rights under the

Hague Convention short of acts that

constitute clear and unequivocal abandonment

of the child.

Friedrich, 78 F.3d at 1066. Further, “[o]nce it

determines the parent exercised custody rights in any

manner, the court should stop — completely avoiding

the question whether the parent exercised the custody

rights well or badly.”

Bader II, 484 F.3d at 671 (quoting Friedrich, 78 F.3d at 1066)

(emphasis added). “Although there may be situations when a long

period of unexplainable neglect of the child could constitute

non-exercise of otherwise valid custody rights under the

Convention, as a general rule, any attempt to maintain a

somewhat regular relationship with the child should constitute

‘exercise.’” Friedrich, 78 F.3d at 1065–66.13

Bader II dealt with a parent who was only intermittently

physically present but continued to pay child support and

perform other custodial acts. The Fourth Circuit explained that

it had

no difficulty affirming the district court’s finding

that Bader exercised his right to joint custody here.

During the three months between his release from

prison and C.J.B.’s removal, Bader had actual physical

custody of C.J.B. on at least three occasions . . . .

In addition, Bader paid child support to Kramer when

13 This test is subject to the following caveat:

[T]his approach will not apply when the country of

habitual residence, by law, expressly defines the

exercise of custody rights for purposes of the Hague

Convention. Similarly, when a competent judicial

tribunal in the country of habitual residence has made

a determination as to whether a parent was exercising

his custody rights, that determination will normally

be conclusive.

Bader II, 484 F.3d at 671 n.1. None of those circumstances apply

in this case.

ordered to do so and financially supported C.J.B.

during the times when she was in his custody. While

any one of these facts might suffice to establish that

Bader did not clearly and unequivocally abandon

C.J.B., their aggregation certainly does so, leading

to the conclusion that Bader actually exercised his

custody rights under the Hague Convention.

Bader II, 484 F.3d at 671.

The facts supporting Petitioner’s actual exercise of her

custody rights are even stronger than those in Bader II.

Petitioner had made extensive plans for Z.R.’s care in her

absence and continued to monitor and direct his care while in

the U.K. Petitioner arranged for her niece and nephew to care

for Z.R. in spring of 2019 so he could finish primary school.

(Minute Entry 08/05/2020.) Petitioner continued to pay rent and

utilities for the home in which Z.R. and his cousins lived.

(Id.) Petitioner arranged for her sister, the mother of her

niece and nephew, to also check in periodically. (Id.)

Petitioner would call and speak to Z.R. every day, usually twice

a day, schedule permitting. (Id.) Even while Petitioner was

overseas, Respondent testified that he continued to make his

informal child support payments directly to Petitioner so she

could use it for Z.R.’s needs. (Id.) To prepare for the

possibility that Z.R.’s visa application would not be approved

before he was supposed to start school in August 2019,

Petitioner also had Z.R. take the entrance exam for a secondary

school in Clarendon, Jamaica, and made plans for him to stay

with Petitioner’s sister in Clarendon after Z.R. returned from

his summer visit. (Doc. 1-8 at 4.) Petitioner was consistently

and repeatedly exercising her custody rights prior to August

2019.

Respondent’s actions conformed with Petitioner’s plan until

August 2019. Pursuant to that plan that Petitioner put in place,

Respondent returned Z.R. to Jamaica as agreed. (Id. at 1.)

Though Respondent tried to alter Petitioner’s plan and register

Z.R. in a different school in Jamaica, Respondent’s frustration

with Petitioner’s plans admits that she did have a plan and had

made arrangements for Z.R. upon his return to Jamaica in August

2019. It was Petitioner who was directing Z.R.’s care, a

stronger indication she was actually exercising her custody

rights than the father in Bader II.14

Far from evincing Petitioner’s “clear and unequivocal

abandonment of the child,” her actions in caring for Z.R. show a

14 There is one difference between this case and Bader II,

but it does not change this court’s analysis. Unlike the more

frequent visits in Bader II, Petitioner visited Z.R. only once

during the period from March 2019 until Z.R.’s graduation.

Petitioner obviously did not visit Z.R. between June and August

while Z.R. was in the U.S. with Respondent as agreed and

customary. The court does not find this distinction significant.

Petitioner was in effect exercising sole care and custody of

Z.R. between March and June; additionally, their separation was

intended to be temporary.

continued involvement in his upbringing as she directed his care

from afar. Respondent’s attempts to classify Petitioner’s

childcare decisions as improper do not diminish the fact that

Petitioner was exercising her custody rights at the time of

removal.

Once a court determines a parent was exercising her custody

rights, “the court should stop — completely avoiding the

question whether the parent exercised the custody rights well or

badly.” Bader II, 484 F.3d at 671 (quoting Friedrich, 78 F.3d at

1066). The court finds that Petitioner was exercising her

custody rights at the time of removal.

D. Defenses

The court finds that Petitioner has proven her prima facie

case by a preponderance of the evidence. Z.R. should therefore

be returned to Jamaica absent Respondent’s ability to establish

one of the affirmative defenses.

Two of the defenses must be supported by clear and

convincing evidence: (1) that return would expose the

child to a “grave risk” of “physical or psychological

harm or otherwise place [the child] in an intolerable

situation” and (2) that return of the child would not

be permitted by “fundamental principles of the United

States relating to the protection of human rights and

fundamental freedoms.” The other two defenses may be

supported by a preponderance of the evidence: (1) that

the petition for return was not filed within one year

of the removal and the child is now well-settled in

another country . . . .

Bader II, 484 F.3d at 668–69.

The court “may also refuse to order the return of the child

if it finds that the child objects to being returned and has

attained an age and degree of maturity at which it is

appropriate to take account of its views.” Hague Convention,

art. 13. A respondent has the burden of proving this by a

preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

Respondent raises three defenses: (1) the Well-Settled

Defense, (2) the Wishes-of-the-Minor-Child Defense, and (3) the

Grave-Risk Defense. The court finds that Respondent has not

proved that any of these defenses apply.

1. Well-Settled Defense

The court first finds that the Well-Settled Defense may not

be asserted here. This defense may be asserted only when an

“action [is] not commenced within one year of the abduction.”

Miller, 240 F.3d at 402 n.14; accord Malmgren v. Malmgren, 747

F. App’x 945, 946 (4th Cir. 2019) (“Article 12 states “[t]he

general rule that when a court receives a petition for return

within one year after the child’s wrongful removal, the court

shall order the return of the child forthwith.” (quoting Lozano

v. Alvarez, 572 U.S. 1, 5 (2014))); Smedley v. Smedley, No.

7:14-CV-66-F, 2014 WL 11996390, at *11 (E.D.N.C. Apr. 28, 2014).

Z.R. was removed from Jamaica in August 2019. Petitioner

filed her Verified Petition in this court on June 5, 2020.

(Verified Pet. (Doc. 1).) Petitioner thus filed her Verified

Petition within one year of Z.R.’s removal, meaning the Well-

Settled Defense is not available to Respondent.

Respondent’s argument that, since Petitioner waited until

three weeks before the one-year mark, the court should consider

the defense, is unpersuasive. First, the court finds the removal

occurred in August 2019, when Z.R. left with Respondent for a

scheduled visit, not June 2019.15 That visit was part of the

informal custody agreement between Respondent and Petitioner.

The wrongful removal of Z.R. occurred when Respondent took Z.R.

back to the U.S. in August 2019 instead of leaving him in

Jamaica with family. Second, Respondent provides no authority

for this court to ignore the black-letter law cited above.

Indeed, the Fourth Circuit recently held, in a persuasive

unpublished opinion, that a “district court’s finding that it

could consider the ‘well-settled’ defense even if the petition

was filed within the one-year timeframe is not supported by the

Convention or case law analyzing the relevant articles.”

Malmgren, 747 F. App’x at 946.

15 In his Verified Answer, Respondent conceded that Z.R. was

only visiting him for the summer when he left in June 2019.

(Verified Answer (Doc. 15) ¶ 9.)

Further, even if the court were to find that it could

consider the Well-Settled Defense, the facts of this case do not

support the defense. See infra, Section II.A. Respondent has

failed to establish the Well-Settled Defense.

2. Wishes of the Minor Child

Respondent argues that Z.R. wishes to remain with him in

the United States, and that Z.R. is of sufficient age and

maturity to make that decision. After an in camera examination

of Z.R., the court disagrees.

The court “may also refuse to order the return of the child

if it finds that the child objects to being returned and has

attained an age and degree of maturity at which it is

appropriate to take account of its views.” Hague Convention,

art. 13. A respondent has the burden of proving this by a

preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

“However, “[a] child’s objection to being returned may be

accorded little if any weight if the court believes that the

child’s preference is the product of the abductor parent’s undue

influence over the child.” Pub. Notice 957, 51 Fed. Reg. 10,494,

10,510 (Mar. 26, 1986) (emphasis added). Because the Hague

Convention does not set forth a particular age at which a

child’s opinion should be considered, the court must make a

fact-based inquiry. See de Silva v. Pitts, 481 F.3d 1279, 1287

(10th Cir. 2007).

After considering its in camera examination of Z.R., as

well as other evidence deduced at trial, the court does not find

that Z.R.’s preference to stay in the U.S. should prevent his

return to Jamaica. The court reaches this conclusion for three

reasons.

First, the court notes that, during its in camera

examination, Z.R. did not object to his return to Jamaica. He

indicated he would be comfortable with that outcome, though he

would prefer to stay in the U.S. (Minute Entry 07/23/2020.)

Still, Z.R. made it clear he loved both his parents and would

not object to return. (Id.)

Second, though the court was immensely impressed by Z.R.’s

intelligence, personality, poise, and conversational abilities

during the in camera examination, it is not convinced that

Z.R.’s priorities indicate the requisite level of maturity for

the court to alter its legal conclusion based on Z.R.’s

preference. Z.R. repeatedly emphasized that his preference for

the U.S. over Jamaica was based on the fact that he was able to

do more activities here than in Jamaica. Z.R. informed the court

that he enjoyed going to movies, amusement parks, and taking

other trips with his father, stepmother, and friends. Z.R. did

not indicate that he felt safer in the U.S. or that he was

receiving a better education; instead, his focus was the amount

of fun he could have in the U.S. as compared to Jamaica. Of

course, the court does not fault Z.R. for preferring a place

that is more “fun”; he is a vivacious thirteen-year-old.

However, given that Petitioner has clearly established a prima

facie case for his return, the court would be remiss to alter

that clear legal conclusion based on Z.R.’s preference.

Third, to the extent Z.R. did express a preference to

remain in the U.S., the court finds that his preference is

partly a product of undue mental and emotional influence from

Respondent.16 Petitioner testified that Respondent has largely

cut off communication between her and Z.R. (Minute Entry

08/05/2020.) Respondent admitted that communications were

limited but claimed that was due to his work schedule and the

fact that Z.R. no longer has his own phone. (Id.) The court

finds Petitioner’s testimony that Respondent largely cut off

communications between her and Z.R. credible and finds

Respondent’s testimony that he has exerted no influence over

Z.R. not credible.

16 The court does not find there is any evidence of physical

duress. Indeed, the court does not question Respondent’s love

and affection for his son.

In particular, the court credits Petitioner’s testimony

that her access to Z.R. has been significantly reduced while

Z.R. has been with Respondent. (Id.) Petitioner provided details

about average calls per day and average times. (Id.) Petitioner

provided detailed testimony about how often she would speak with

Z.R. before he was removed and even testified about how much

better communications were when Respondent sent Z.R. to live

with Respondent’s family in Florida for a period around March

2020. (Id.) Petitioner also testified to times when she could

hear Respondent in the background, indicating he was monitoring

Z.R.’s conversation with Petitioner. (Id.) Petitioner testified

about these matters clearly, without hesitation, and did not

contradict herself. The court finds her testimony credible and

assigns it great weight.

By contrast, Respondent’s contradicted himself and was

prone to mischaracterize events.17 Respondent testified

Petitioner’s conversations were limited because of his own

schedule and time zone differences. (Id.) Respondent’s

17 As an example, Respondent, when asked about the visa

application letter he would not sign, started by saying that

everything in the letter was false. However, when asked by the

court about four specific sentences, he admitted all were true.

The most charitable reading of Respondent’s testimony is that it

was prone to extreme hyperbole. However his testimony is

labeled, the court finds much of Respondent’s testimony

unreliable.

pretextual explanation for why he was not able to let Z.R. speak

to Petitioner more often is undercut by his other admissions.

For instance, Respondent admitted he told Z.R. to not give

Petitioner Respondent’s home address, and Respondent also told

Z.R. not to tell Petitioner where he went to school. (Id.) In

fact, Respondent told Z.R. that if he provided that information,

Petitioner would send immigration services to pick him up, take

him back to Jamaica, and that Z.R. would not be able to see his

father for a long time. (Id.) Z.R. confirmed this story during

his in camera examination with the court. (Minute Entry

07/23/2020.) Z.R. also stated that Respondent shared

Petitioner’s Verified Petition and other suit papers with Z.R.,

further indicating Respondent attempted to influence Z.R.

regarding the outcome of this case. (Id.; Minute Entry

08/05/2020.)

The most disturbing part of Respondent’s testimony involves

his explanation for why Z.R. did not have his own phone. Z.R.

indicated to this court during his in camera examination that he

broke his phone. (Minute Entry 07/23/2020.) During his

deposition, Respondent responded to a question from Petitioner’s

counsel about whether he controlled Petitioner’s access to Z.R.;

he answered in part that “[w]henever [Z.R.] break his phone --

like I say, he always break his phone . . . .” (Doc. 22-1 at

21.) At trial, however, Respondent stated that he was the one

who broke Z.R.’s phone — he broke it by throwing it against a

post. (Minute Entry 08/05/2020.) Respondent tried to qualify his

deposition testimony during trial by claiming he was just

offering the additional fact that Z.R. breaks a lot of things he

owns, not that Respondent was indicating Z.R. broke his phone.

(Id.) Respondent never indicated in his deposition that he was

the one who broke Z.R.’s phone. The court does not find

Respondent’s explanation of his deposition testimony persuasive

and instead finds that Respondent broke Z.R.’s phone, misled

counsel during his deposition about that fact, and influenced

Z.R. to do the same during his in camera examination.

Finally, the court finds, as Z.R. indicated, that

Respondent told Z.R. that if he is returned to Jamaica,

Respondent would not see Z.R. again until he is 18. (Minute

Entry 07/23/2020.) The court finds this to be a clear instance

of Respondent’s attempt to manipulate Z.R. and bring undue

influence to bear on Z.R.’s choices.

In conclusion, the court finds that Respondent has failed

to establish the Wishes-of-the-Minor-Child Defense. The court’s

own in camera examination of Z.R. revealed he does not object to

his return to Jamaica, nor did he provide statements that

convince this court it should deny Petitioner’s request for

return. The court also finds Z.R. has been under the influence

of Respondent in a way that makes Z.R.’s preference uncompelling

as a defense to Petitioner’s case for return.

3. Grave-Risk Defense

Finally, Respondent raises the Grave-Risk defense. The

court finds that Respondent has failed to establish the defense

by clear and convincing evidence.

Article 13(b) contains an exception to return when “there

is a grave risk that [the child’s] return would expose the child

to physical or psychological harm or otherwise place the child

in an intolerable situation.” Smedley, 2014 WL 11996390, at *4

(quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir.

2009)). “Significantly, as explained by the State Department, to

invoke the defense, the party seeking to establish the exception

must ‘show that the risk to the child is grave, not merely

serious.’” Gomez v. Fuenmayor, 812 F.3d 1005, 1012 (11th Cir.

2016) (quoting Hague International Child Abduction Convention;

Text and Legal Analysis, 51 FR 10494–01, 10510 (1986)).

The defense must be proved by clear and convincing

evidence. 22 U.S.C. § 9003(e)(2)(A). Allegations alone are not

sufficient; there must be evidence supporting the conclusion

that the child is at risk. Hirst v. Tiberghien, 947 F. Supp. 2d

578, 595 (D.S.C. 2013) (allegations of sexual abuse not

supported by evidence).

Furthermore, it is not this court’s prerogative or its

mandate in the instant litigation to determine whether

one parent would be better than the other, or whether

the environment offered by Respondent is superior to

the environment offered by Petitioner. See Whallon v.

Lynn, 230 F.3d 450, 459 (1st Cir. 2000) (courts

considering Article 13(b) grave risk exception “are

not to engage in a custody determination or to address

such questions as who would be the better parent in

the long run.”); see also Hague International Child

Abduction Convention; Text and Legal Analysis, 51 FR

10,510 (“‘intolerable situation’ was not intended to

encompass return to a home where money is in short

supply, or where educational or other opportunities

are more limited than in the requested State.”).

Id. at 596. Finally, as the Fourth Circuit pointed out in

Miller, courts in return countries are normally able to protect

children, a fact that should often convince U.S. courts that the

Grave-Risk Defense does not apply. See Miller, 240 F.3d at 402.

For the defense to apply, respondents must provide evidence

of severe, concrete risk to the minor child. Courts in other

circuits have described a spectrum of risk with this defense:

“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.

Baxter v. Baxter, 423 F.3d 363, 373 (3d Cir. 2005) (quoting

Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001)). “This

defense requires the alleged physical or psychological harm to

be a great deal more than minimal. Only severe potential harm to

the child will support this defense.” Marquez v. Castillo, 72

F. Supp. 3d 1280, 1287 (M.D. Fla. 2014) (quoting Whallon, 230

F.3d at 459; citing Nunez–Escudero v. Tice–Menley, 58 F.3d 374,

377 (8th Cir. 1995)). At “the time the Convention was adopted,

the State Department took care to emphasize that grave risk

doesn’t ‘encompass . . . a home where money is in short supply,

or where educational or other opportunities are more limited.’”

Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010) (quoting 51

Fed. Reg. 10494, 10510 (1986); citing Baxter, 423 F.3d at 365–

66, 373).

Courts have refused to deny return on grave-risk grounds

even when the parent in the return country has received threats

from violent gangs, Salguero v. Argueta, 256 F. Supp. 3d 630,

639–40 (E.D.N.C. 2017) (MS13 threats against parent in return

country), when return is to a country that is generally

considered “dangerous,” Alonzo v. Claudino, No. 106CV00800, 2007

WL 475340, at *5 (M.D.N.C. Feb. 9, 2007) (fact that return would

be to Honduras not reason enough), or if child is returning to a

home without indoor plumbing and questionable sanitation,

Cuellar, 596 F.3d at 509 (“Billions of people live in

circumstances similar to those described . . . . If that

amounted to a grave risk of harm, parents in more developed

countries would have unchecked power to abduct children from

countries with a lower standard of living.”).

Courts do find the exception applies in situations where

the evidence clearly establishes grave psychological and

physical harm that the courts in the country of habitual

residence cannot prevent. See Blondin, 238 F.3d at 162

(discussing situation where the risk was a case of was well-

established PTSD from previous abuse of child, a harm that a

court could not prevent since being returned would trigger it);

see also Walsh v. Walsh, 221 F.3d 204, 219 (1st Cir. 2000)

(finding grave risk of harm in returning child to father who

physically abused mother in front of children, was “extremely

violent,” and repeatedly ignored court orders); Gomez, 812 F.3d

at 1012 (discussing situation where children’s return would

place them in the middle of well-established drug violence

involving child’s primary custodian); Leonard v. Lentz, 748 F.

App’x 87, 89 (8th Cir. 2019) (defense applied to child who had

received a kidney transplant and was not cleared to travel).

As for evidence that Z.R. is at grave risk if returned,

Respondent offers only the following.

First, Respondent points out that Z.R. was living with an

eighteen-year-old and twenty-one-year-old after Petitioner took

her job in the U.K. (Verified Answer (Doc. 15) ¶ 34; Minute

Entry 08/05/2020.) Respondent argues that such a living

situation is unsafe. Respondent does not provide, nor did he

testify to, any examples of neglect or abuse by Z.R.’s cousins.

Petitioner, on the other hand, testified that she trusted both

her niece and nephew. (Id.) In fact, as the text messages

admitted at trial demonstrate, Respondent first suggested

Petitioner leave Z.R. with Petitioner’s niece. (Id.) Petitioner

also testified that she would check in on Z.R. every day,

usually twice a day, and that Petitioner’s sister would also

visit to ensure all was well. (Id.)

Further, Respondent fails to acknowledge that Petitioner’s

original plan for Z.R. in August 2019 was for him to live with

his aunt, Petitioner’s sister, in Clarendon, not with

Petitioner’s niece and nephew. (Id.) Even if Z.R. was going back

to live with his cousins, there is no evidence that Z.R. would

be subjected to an “intolerable situation” or “severe potential

harm.”18

It seems as if Respondent is actually arguing not that Z.R.

is in imminent danger if he returns, but that he disagrees with

Petitioner’s parenting decisions, and that he can provide a more

stable environment for Z.R. However, it is not the role of this

court to resolve that dispute or judge Petitioner’s care plan

for Z.R. See Whallon, 230 F.3d at 459.

Respondent’s second point is that Clarendon, Jamaica, is an

unsafe place. Respondent’s only evidence on this point is his

own testimony that Clarendon has the third highest murder rate

in Jamaica. (Minute Entry 08/05/2020.) Respondent is not a

criminologist or statistician, nor did Respondent put that fact

into context. Even if he had put forth other evidence in support

of this statistic, since courts have found the Grave-Risk

Defense does not apply to places with well-documented violence,

this court finds Respondent’s testimony does not establish the

defense by clear and convincing evidence.

18 The court also notes that Petitioner testified that if

this court granted her request for return, she would take a

leave of absence to return to Jamaica and pursue a custody

action. Even if Petitioner could not return, however, the court

would still find the Grave-Risk Defense has not been

established.

Finally, Respondent argues that the risk from COVID-19 is

so great that he should not be required to return Z.R. to

Jamaica. (Verified Answer (Doc. 15) ¶ 35.) The court does not

find this testimony persuasive. Respondent testified that he

recently brought his six-year-old daughter from Jamaica to stay

with him in the U.S.; he will be taking her back later this

month. (Minute Entry 08/05/2020.) COVID-19 does not satisfy the

Grave-Risk Defense.

III. CONCLUSION

For the foregoing reasons, the court finds that Petitioner

has established by a preponderance of the evidence that Z.R.

should be returned to Jamaica. Respondent has not established

that any of the affirmative defenses apply.

IT IS THEREFORE ORDERED that Petitioner’s Verified Petition

under the Hague Convention on the Civil Aspect of International

Child Abduction, (Doc. 1), is GRANTED.

IT IS FURTHER ORDERED that the minor child, Z.R., shall be

returned forthwith to the Country of Jamaica. Respondent shall

arrange for Z.R. to be returned to Jamaica on or before

September 4, 2020.

IT IS FURTHER ORDERED that all travel documents are to be

returned to the parties and Z.R. to permit compliance with his

Order.

IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss,

(Doc. 23), is DENIED AS MOOT.

A judgment in accordance with this Memorandum Opinion and

Order will be entered contemporaneously herewith.

This the 26th day of August, 2020.

LA; buce

Lb Winm L. (6 xX

United States District Ju

-43-