Valles Rubio v. Veintimilla Castro

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SEGUNDO MELCHOR VALLES RUBIO,

Petitioner,

MEMORANDUM & ORDER

-against-

19-CV-2524(KAM)(ST)

OLGA KATERINE VEINTIMILLA CASTRO,

Respondent.

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MATSUMOTO, United States District Judge:

Petitioner Segundo Melchor Valles Rubio (“Valles” or

“petitioner”), a citizen of Ecuador, petitions this court for

the return of his son to Ecuador pursuant to the Hague

Convention on the Civil Aspects of International Child

Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343

U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986)

(“Hague Convention” or “Convention”), as implemented by the

International Child Abduction Remedies Act, 42 U.S.C. §§ 11601–

11610 (“ICARA”). The child, B.V.,1 age 9, has been retained in

the United States by his mother, respondent Olga Katerine

Veintimilla Castro (“Veintimilla” or “respondent”), also a

citizen of Ecuador, without petitioner's consent since May 2,

2018.

1 The child’s initials, instead of his full name, are used to protect his

identity pursuant to Federal Rule of Civil Procedure 5.2.

Petitioner commenced this action on April 30, 2019.

On June 3, 4, and 5, 2019, the court held an evidentiary

hearing. Petitioner, respondent, Ariel Gould, Esq., an

immigration attorney retained by respondent, and Dr. Edward

Fernandez, Psy.D., a clinical psychologist also retained by

respondent as an expert witness, testified in open court. At

the beginning of the hearing, the court interviewed the child,

asking questions submitted by the parties, in camera in the

presence of counsel, and on the record with the assistance of a

Spanish interpreter, but outside the presence of the parties.

(See generally H’rg Tr. (“Tr.”).) The court received into

evidence a number of exhibits including certified translations

of legal documents from the parties’ prior litigations in

Ecuador. (See, e.g., ECF No 24, Resp’t’s Ltr.; Exs. AB, AC, AI,

AK-AM.) The parties then submitted additional, stipulated

translations of documents, proposed findings of fact and

conclusions of law, (see ECF No. 25, Resp’t’s Prop. Findings of

Fact and Concl. of Law (“Resp. Prop.”); ECF No. 26, Pet’r’s

Prop. Findings of Fact and Concl. of Law (“Pet. Prop.”)), and

then replied to each other’s respective proposals, (see ECF No.

27, Resp’t’s Opp’n (“Resp. Opp.”); ECF No. 28, Pet’r’s Opp’n

(“Pet. Opp.”)). The parties also stipulated to a number of

facts, to which the court refers in this memorandum. (See Jt.

Stip. Facts (“Stip.”).)

For the reasons set forth in this Memorandum and

Order, which constitutes the court's findings of fact and

conclusions of law pursuant to Rule 52 of the Federal Rules of

Civil Procedure, the petition is GRANTED.

FINDINGS OF FACT

I. Chronology of Events

Petitioner Valles and respondent Veintimilla began an

intimate relationship in 2005 in Ecuador. (Stip. ¶ 1.) Though

the two have never been married, they lived together in Machala,

Ecuador from 2005 until 2010. (Id. ¶¶ 2-3.) Petitioner told

respondent he did not want to have children with her and when

she became pregnant, the petitioner yelled at her and told her

that he was not the father. (Tr. 169.) This relationship bore

one child, B.V., in April 2010, who is the subject of this

petition. (Stip. ¶¶ 4-5.) Respondent testified that their

relationship was “conflict-ridden” and that petitioner shouted

insults at her, calling her derogatory names like “elephant” and

“whore” in the presence of B.V. (Tr. 166.) Sometime in fall of

2011, respondent moved to Duran, Ecuador with the child, and

without petitioner, where they shared a home with her brother.

(Stip. ¶ 6; Tr. 224:1-4.) Petitioner maintains an apartment in

Guayaquil, Ecuador. (Tr. 80:7-18.) Though petitioner and

respondent do not have a formal custody arrangement, the child

spent time with his father on weekends and holidays.2 (Tr.

52:16-24; 79:9-80:1; 130:12-17; 155:15-19.) Respondent

testified that her son would return from visits with his father,

and that his behavior changed to the extent that B.V. began

insulting her and his classmates, noting that respondent would

cry when his father insulted her. (Tr. 167.) When B.V. was

3-1/2 or 4 years old, respondent went with B.V. to petitioner’s

business to seek $30 per month that he had offered to pay for

child support, but petitioner called her a whore and pushed her

out of the warehouse. In February 2015, respondent petitioned

an Ecuadorian Family Court to have petitioner pay child support

for the child, (Stip. ¶ 13-14), and the Court ordered that

petitioner pay $103 per month in child support, (Tr. 176-78).

Respondent also rented her home in Duran to earn money to

support herself and B.V. and received financial assistance from

her grandmother and an aunt in the United States. (Tr. 169-70.)

Petitioner, who has five adult children from a

previous relationship, owns a gun shop and warehouse in Ecuador

and is a firearms and accessories dealer. (Stip. ¶ 57.) He has

occasionally in the past traveled to the United States. (Id. ¶

2 There is some dispute as to how frequently petitioner would see B.V.,

particularly between 2015 and 2016, though it is undisputed that petitioner

resumed his visits with the child by mid-2016. (See Tr. 182:9-17.) Petitioner

testified that between December 2015 through March 2016, he did not see his

son. (Tr. 156-57.) Respondent testified that petitioner stopped seeing B.V.

in 2015 and did not see him again until mid-2016. (Tr. 182.)

59.) Before B.V. was born, respondent worked at petitioner’s

gun warehouse without pay. (Tr. 170.) Both respondent and B.V.

credibly testified that they observed petitioner transport

weapons in a hidden compartment in his truck, which prompted

respondent to speak with petitioner about the danger of

transporting weapons with their child in the vehicle.

Petitioner responded that she should not get involved. (See,

e.g., Ex. W, Photo; Tr. 22, 183-88.) Petitioner also testified

that he carried an unloaded firearm locked in a case in the

backseat of his truck. (Tr. 115-16.)

Shortly after respondent sought child support in

February 2015, petitioner brought a legal action against

respondent in Ecuadorian Family Court in July 2015, alleging

that respondent physically abused the child. (Stip. ¶ 15.)

Though the Family Court found respondent innocent in a decision

dated August 20, 2015, based on a statement by B.V.’s

schoolteacher that B.V. had been hurt in an accident at school,

(id. ¶ 16), it also ordered “all the victims” and the aggressor

to appear for therapy, though the parties dispute that the

Family Court intended petitioner to participate in therapy.3

3 Exhibit AI is an Ecuadorian social worker’s report dated July 27, 2015

which Dr. Fernandez reviewed, and which recounts an interview of petitioner,

respondent, and B.V. The report appears to have been adopted into Exhibit

AK, the August 20, 2015, decision of the Ecuadorian Family Court. (Ex. AK,

Aug. 20, 2015 Op. 4.) In the English translation, to which the parties

stipulated and which the court admitted into evidence, the social worker and

(See Resp. Prop. ¶ 146; Pet. Opp. 12; Resp. Opp. 12; see also

Ex. AK, Aug. 20, 2015 Op.; Ex. AM, Psych. Eval.) A

psychological evaluation4, (Ex. AM, Psych. Eval.), by the Center

for the Integrated Protection and Attention of Interfamily and

Gender Violence, of the Ministry of Justice, notes that

attendance at psychological therapy for petitioner, respondent,

and B.V. was requested, as well as quarterly reports. (Psych.

Eval. 1.) Respondent offered a visitor log indicating that she

attended court-ordered therapy sessions, but that petitioner did

not attend these sessions. (Ex. AB, Visitor Log; Ex. AI, Soc.

Worker Rept. 4.) Based on these documents, however, the court

cannot conclude that petitioner failed to attend court-ordered

therapy sessions between September 21 and March 18, 2016, as it

is unclear that petitioner was ordered to attend therapy at the

times listed in the visitor’s log. The absence of petitioner’s

signature on the visitor-log does not necessarily mean he was

required to attend. Indeed, the only notation aside from

the Family court recommended that “psychological and family therapy be

provided to all the victims as well as the aggressor in order to try to

restore the family nucleus and prevent revictimization of the individual.”

(Id.; Ex. AI, Soc. Worker Rept. 4.) It is not clear from this recommendation

who the victims and aggressor are, nor is it clear that petitioner was

ordered to therapy. Thus, it is not clear that his alleged failure to

participate in family therapy constitutes a failure to comply. (See Resp.

Prop. 24, ¶ 146.) However, Exhibit AM appears to be a mental health

professional’s report of a therapy session that included interviews of

respondent, petitioner, and B.V., which notes that the three “attend[ed]

therapy at the request of the [Family Court].” (Ex. AM, Psych. Eval. 1.)

The report, however, concludes that therapy would continue “for the child

together with his mother” without reference to petitioner. (Id.)

4 The document refers to a September 7, 2015, communication from the

Ecuadorian Family Court, but the document is otherwise undated.

respondent’s signature on the log is vague and illegible and

does not indicate petitioner was absent.

The Provincial Court of Justice in Gayas, Ecuador,

confirmed the Family Court’s August 20, 2015, decision finding

respondent innocent of child abuse, after petitioner appealed.

(Id. ¶ 17.) Sometime in 2016, petitioner unsuccessfully sought

a court order to have his child support obligations reduced,

claiming he had another son to support, but the other son was an

adult. (Id. ¶¶ 18-19; Tr. 178-79.)

In 2014, respondent obtained a tourist visa to the

United States for herself and B.V. (Id. ¶ 20.) The parties do

not dispute that under Ecuador’s parental custodial laws, both

biological parents must consent to their child’s international

travel. (Pet. Prop. 17-18; see also ECF No. 1, Ver. Pet. ¶ 26

(citing Ecuadorian Code of Childhood and Adolescence art. 109).)

Petitioner had agreed to authorize B.V.’s travel with

respondent, however, after respondent purchased their tickets,

petitioner refused to authorize the child’s travel. (Stip. ¶

21; Tr. 211-12.) Respondent decided to travel to the United

States without child, and asked to leave B.V. with petitioner.

Petitioner, however, grew angry when respondent informed him

that she would be traveling for nearly a month, stating that he

was not a babysitter, and that he would not take care of or be

responsible for “that shitty child.” (Tr. 211-12.) Respondent

instead left the child with her family, the child’s aunt and

uncle, in Ecuador while she visited the United States for two

months. (Stip. ¶¶ 23-24.)

In 2016, Veintimilla sought to travel to the United

States with B.V. (Id. ¶ 26.) Petitioner again refused to grant

permission, and respondent sought court authorization to travel

with B.V. to the United States. (Id. ¶¶ 27-28.) The Ecuadorian

Family court authorized the travel and respondent and B.V.

traveled to the United States and stayed with respondent’s Aunt

Leonor in Elmont, New York. (Id. ¶¶ 29-31.) Respondent and the

child eventually returned to Ecuador in 2016. (Id. ¶ 32.)

In 2018, respondent once again sought to travel to the

United States with B.V. (Id. ¶ 33.) Petitioner once again

refused to authorize B.V. to travel. (Id. ¶ 34.) Respondent

sought and obtained court authorization to travel with the child

and return to Ecuador by May 2, 2018. (Ex. 9, Ecuador Family

Ct. Travel Auth. ¶¶ 3-6.5) Respondent and B.V. eventually

traveled to the United States on April 1, 2018. (Id. ¶¶ 35,

37.) Respondent and B.V. stayed with respondent’s Aunt Leonor

in Jackson Heights, Queens, and with B.V.’s two cousins. (Id.

¶¶ 40-41.) When respondent arrived in New York, she learned

5 As the parties are native Spanish speakers and citizens of Ecuador,

many of the documents provided as exhibits in this matter are originally in

Spanish. Such exhibits are provided with certified and stipulated

translations.

that her aunt had lost her home in Elmont and had relocated to

Jackson Heights. (Tr. 215.)

Though respondent and B.V. were required by Ecuadorian

Family Court order to return to Ecuador by May 2, 2018, they

have not returned to Ecuador since leaving on April 1, 2018.

(Id. ¶ 42.) Moreover, the two have apparently overstayed their

visa, but neither are the subject of removal proceedings.

(Resp. Prop. ¶ 108; Stip. ¶ 61; Tr. 58:15-17; 59:17-21; 63:4-8;

72:4-7.)

PROCEDURAL HISTORY

I. The Petition

Petitioner filed the instant action on April 30, 2019,

“to secure the return of his nine-year-old son, [B.V.],” and an

award of “all costs and fees incurred” as necessary expenses as

a result of Respondent’s alleged wrongful retention of B.V.

(Id. ¶ 56; ECF No. 1, Ver. Pet. ¶¶ 1, 65-66.) Petitioner

concurrently moved for an injunction restraining respondent’s

ability to leave the District, an order that Respondent

surrender her and the child’s passport to the Clerk of Court for

the District, and an order that respondent appear for a show

cause hearing. (Ver. Pet. ¶ 67.)

On the same day, April 30, 2019, in keeping with its

statutory obligation to expedite petitions brought under the

Hague Convention, the court ordered respondent to show cause at

a hearing on May 10, 2019, why the child should not be returned

to Ecuador. (ECF No. 5, Order to Show Cause.) The court also

prohibited respondent from removing or arranging for the removal

of the child from the District and ordered that respondent

surrender her passport and the child’s to the Clerk of Court.

(Id.) Petitioner filed an affidavit of service on May 1, 2019,

(ECF No. 6, Aff. Service), and respondent surrendered two

passports to the Clerk of Court on May 3, 2019, (see Docket

Entry dated May 3, 2019).

Counsel for respondent appeared on May 8, 2019, (ECF

No. 7, Not. Appearance), and the court invited respondent to

file an answer to the petition before the May 10, 2019, hearing,

(see Docket Order dated May 8, 2019). Respondent filed a

declaration on May 9, 2019, responding to the petition. (ECF

No. 8, Decl.) At the May 10, 2019, hearing, both parties and

the child were present. The court scheduled additional hearing

days, ordered briefing by the parties, and encouraged the

parties to confer towards settlement and to arrange for

petitioner to visit his son whom he had not seen in over a year.

II. Hearing

The show cause hearing spanned several days, and the

court heard testimony from the child, the parties, an

immigration attorney, and a clinical psychologist retained by

respondent, on June 3, June 4, and June 5, 2019.6 (See Minute

Entries dated June 3-5, 2019.)

A. Witness Testimony

1. Interview of Child

The court began the hearing by interviewing the child,

who was placed under oath, outside the presence of either party,

but in the presence of counsel and an interpreter. (Tr. 17.)

The court finds that the child understood the meaning of the

oath and the obligation to tell the truth. The court also finds

that the child’s testimony was credible, except where noted.

The child testified that he was nine years old, that he was then

in the third grade, and that he mostly liked school. (Tr. 19-

20.) He recalled living in Ecuador and visiting his father,

though he lived with his mother. (Tr. 20.) He saw his father

about once a week, but also testified that there were some weeks

in which he did not see his father “because I didn’t want to see

him.” (Tr. 20:14-20.) The child did not want to see his father

on those occasions “because he w[ould] call me names” and

“w[ould] hit me with a belt. And then he w[ould] leave [me] with

my sister, who would lock me up inside the house.” (Tr. 20:24-

21:4.) The child testified that his father would sometimes call

him “queer” or “fag” but that he also sometimes used those words

6 The parties arranged for the assistance of court certified interpreters

at the show cause hearing.

referring to other people. (Tr. 22:11-14.) Petitioner also

called the child “shit” once. (Tr. 21:19-21.) The child

testified petitioner often insulted him “on occasions when

[petitioner] would receive some bad news about me,” often

related to poor behavior in school like B.V.’s failure to do

homework. (Tr. 21-22.) Such comments made the child feel bad

and believe that his father hated him. (Tr. 22:18-19.)

The child recounted several instances of physical

abuse by his father. During the child’s testimony regarding

physical abuse by his father, the child appeared to fidget,

spinning in his chair away from the table, and asked when he

could see his mother and finish his testimony. Consequently,

the court curtailed its questioning of the child and was unable

to pose many follow-up questions. B.V. first testified that his

father hit him with a belt four times.7 (Tr. 22-23.) He added

7 The child’s testimony is unclear as to how many separate times he was

hit with a belt. That is, whether petitioner hit the child with a belt on a

single occasion, striking him four times, or whether petitioner hit the child

with a belt on four separate occasions:

The court: When he hit you on the bottom with a belt, how many times

did he do that?

A: The third time, once.

Q: So he hit you four times total, and one time was with a belt on the

butt; is that right?

A: Yeah.

Q: Okay, and how many times did he hit with you (sic) a belt besides

that one time on the bottom?

A: Once.

Q: Okay, I think earlier you told me that he hit with a belt four

times; is that right? Or did he hit you four times total, and one of those

four times was with a belt?

A: Yes.

. . .

that his father hit him with a stick once, (Tr. 23:6-7), and

that his father’s ex-wife also hit him with a stick, (Tr. 25:24-

25; 26:5-7). Concerning the times he was hit with a belt by his

father, the child testified that his father hit him both while

the child was wearing clothes and directly on his bare skin.

(Tr. 24:4-22.) Though the child also testified that when

petitioner hit him with a belt it left bumps or a red mark,

including on his buttocks even though the child was wearing

pants while he was struck by his father with a belt on the

buttocks. (Tr. 24:10-22.) B.V. did not testify that his father

hit him with his hands, but he did testify that he once observed

his father hit respondent with his hands. (Tr. 23:17-21.)

Witnessing his father hit his mother made the child feel bad.

(Tr. 24:3.)

Petitioner also once tied B.V. up “while he was

beating [him].” (Tr. 38:15-16.) The child had earlier gone “to

the beach with [his] brother and [his] cousins,” when his

“father arrived and he . . . scolded [B.V.]” before they

returned to Guayaquil, where his father lives. (Tr. 39:4-6.)

Upon returning, B.V. was tired and fell asleep, and “didn’t

notice” and “didn’t feel anything when [petitioner] tied [him]

Q:[B]ut how many times did your father hit [you] with the belt?

A: All of them, with all of those that I mentioned.

(Tr. 25:3-19.)

up and hit [him].” (Tr. 39:6-8.) B.V. was asleep in bed when

his father tied his hands and feet with a belt, (Tr. 39:17-23),

but he did not wake up because he “didn’t feel anything” and was

“deep asleep,” (Tr. 39:24-40:4). His father “tied [him] up with

two” long belts, then started to beat him with a third belt, but

the child did not wake up, because he “just felt a little bit of

pain but . . . said, ‘nah, that’s nothing.’” (Tr. 40:5-25;

41:1-9.) The child recalled that he “just felt a pinch.” (Tr.

40:19.) Though this testimony appears to be the child’s

recollection of a dream, when asked if he was dreaming, he

testified that it was not a dream. (Tr. 40:13.) The court

finds that the child’s account of being tied up and beaten while

asleep in bed was most likely a dream.

B.V. also testified to being left alone by his older,

adult half-sister, Pocha. (Tr. 26.) He testified that it

happened once, but he could not recall how old he was at the

time, either five, six, or seven years old.8 (Id.) The child

believed that his father was away in Guayaquil, and “as always,

he was selling weapons.” (Tr. 27:6-7.)

The child testified about his father’s firearms. He

stated, “[m]y father had a handgun. It was not a toy handgun.

8 Respondent, on the other hand, testified that B.V. was left alone by

Pocha more than once and testified that B.V. told her he woke up in the

middle of the night to find no one home—not Pocha, not her husband, and not

her children. (Tr. 205:9-24.)

It was a real handgun. And he had it hidden or covered by a

piece of cloth where the lever to starting the car is located.”

(Tr. 27:14-16.) He further testified that his father once

handed him a loaded handgun, “not a toy handgun,” while in his

father’s office in his weapons warehouse. (Tr. 27:14-24; Tr.

31:3-15.) B.V. apparently pulled the trigger, and “[a] bullet

got out, because [B.V.] wanted to see if [it was] loaded.” (Tr.

28:1-5.) B.V. stated that petitioner “was abusing me,” and then

told the child “[g]ive me the gun back, I have to see . . . if

it fired by accident.”9 (Tr. 28:6-7.) A computer broke as a

result of the gunshot, and petitioner told the child, “[g]ive me

the gun, the pistol, otherwise-maybe I might fire at you.”10

(Tr. 29:5-8.) As to this last exchange, the child concluded

“[s]o he was abusing me.” (Tr. 29:7.) When asked how

petitioner was abusing him, B.V. responded “[h]e was abusing me

about giving me (sic) the gun.” (Tr. 29:20.) According to

B.V., his father “said that he might—he said he was going to

fire at me by accident.” (Tr. 30:1-18.) B.V. testified that he

was scared. (Tr. 29:25-30:4.)

9 B.V. was inconsistent as to the timing of this exchange. He later

testified that he pulled the trigger after his father demanded to see the gun

and threatened to fire the gun at B.V. by accident. (Tr. 30:16-22.)

10 The transcript of this testimony by the child, given originally in

Spanish by the child and translated into English by an interpreter, is

somewhat unclear. That is, interpreter Daniel Sherr, then sitting in reserve

while another interpreter translated for the child, interjected during the

child’s testimony to clarify what Sherr believed was an omission by the other

interpreter. (See Tr. 28-29.) The court permitted the child a brief break

while it sought clarification from the interpreters. (Tr. 29:3-9.)

B.V. also testified about the presence of guns in his

father’s home, though somewhat inconsistently. When asked if he

had “seen weapons in [his] father’s home,” B.V. responded,

“[y]es, I’ve heard shooting . . . [a]nd my father wasn’t there.”

(Tr. 31:19-22.) The child testified that the shooting was

outside his father’s home and that it startled him. (Tr. 32:2.)

Though the incident involving B.V.’s discharge of the handgun

occurred at petitioner’s office within his warehouse, the child

testified that there are “some weapons in the closet” at his

father’s home. (Tr. 31.) B.V. saw five guns within his

father’s home: “one he has in the closet and others he has in a

place where nobody can go in,” though the child testified that

both he and his father were able to access the guns. (Tr.

32:11-13.) When asked where this place was that only he could

go, B.V. testified that it was “in [his] father’s office,

there’s . . . a transparent door,” beyond which is a hammock

where the child sometimes sleeps and a door with a shelf.11 (Tr.

33:1-5.) The child asked his father what was there, and

petitioner responded, “[t]hese are guns that I’m going to sell.”

(Tr. 33:5-6.) B.V. also testified that the closet in which he

11 B.V. also testified, “[a]nd that’s where the bathroom was,” but stated

that guns were not hidden in the bathroom. (Tr. 32:17-20.) As part of this

testimony, B.V. also initially testified, in English, that his father was in

the bedroom on one occasion when B.V. found these guns and accessories, but

the interpreter later clarified B.V. was referring to his father being in the

bathroom when B.V. discovered the weapons in his father’s bedroom. (Tr. 35.)

saw guns on a shelf is in his father’s bedroom, where his father

sleeps, and that his father “had a gun underneath” his bed.

(Tr. 35.) Another time when B.V. was looking at this collection

of guns and accessories, outside his father’s presence, he

recognized what he believed was a silencer on the shelf in his

father’s bedroom closet, see 18 U.S.C. § 921(a)(24), having seen

something similar in a videogame called Fortnight. (Tr. 34-35.)

B.V. also recognized a shotgun, other “[l]ong guns,” and what he

described as a “silencer[] that you like look through,” which

the court clarified was a scope. (Tr. 36:2-18.) The child once

again testified that there were five guns in all that he

observed within his father’s home. (Tr. 36:9.)

B.V. also recounted the sale and transportation of

guns by his father while B.V. was a passenger in his father’s

truck. He testified that petitioner traveled with a handgun

hidden in his truck. (Tr. 25; 37.) Petitioner “had a handgun

. . . not a toy handgun . . . hidden or covered by a piece of

cloth” near the car’s ignition. (Tr. 25:14-16; 37:2-4.) When

asked if he had seen other guns in his father’s truck the child

responded in English, “Yeah. No. No.” (Tr. 37:8-9.) When asked

if he observed his father “[sell] guns out of his car,” B.V.

responded “[n]o. Yes, yes, yes” to the court’s question. (Tr.

37:12.) He did recall, however, one instance where he saw his

father exchange or sell a gun with a fat man at his father’s

house. (Tr. 37:14-22.) B.V. was with one of his best friends

when his father told the two to go outside. (Id.) After

leaving, while on the roof or a balcony of his friend’s house,

the child saw his father disassemble and re-assemble a gun

because, B.V. believed, “it needed a missing part.” (Tr. 37-

38.) When the fat man apparently saw the children watching

them, “he came after [B.V.],” but B.V. “went back into the house

and shut the door.” (Tr. 38:12-14.)

Reflecting on time spent with his father, B.V.

testified that he did not have any good times, stating that his

“relationship with [his] father was good until he hit me. And

at that point, from that point on, the relationship became bad.”

(Tr. 41:10-15.) The child does not want to return to Ecuador,

because he hates his half-brothers and his father. (Tr. 44:2-

8.) He testified that his brothers “mistreat” him and keep him

locked in the house and make B.V. do everything for them. (Tr.

44:11-15.) B.V. testified that he hates his father “because he

beats me. He leaves me alone. He also hates me.” (Tr. 44:24-

45:1.) B.V. believes his father hates him because he mistreats

him. (Tr. 45:3-4.) At this point in the testimony, the child

repeated three times “he hates me,” and explained that he (B.V.)

felt angered. (Tr. 45:3-8.) When shown a photograph of

himself, his father, his half-sister, Pocha, and others eating a

meal, (Ex. 5, Photo), B.V. crossed out his father’s and Pocha’s

faces, saying “I hate this” and “I don’t like it.” (Tr. 45-46.)

As to his half-sister, Pocha, B.V. does not like her

because he believes she also hates him, but sometimes “she was

good because sometimes we played together.” (Tr. 46:12-16.)

Though B.V. testified that Pocha did not do anything to make him

feel badly, he also testified that she left him alone when he

was little once. (Tr. 46:17-22.) During the interview, B.V was

shown an essay he wrote in Spanish at school in New York. (Tr.

49-50 (citing Ex. O, Essay).) He confirmed that everything he

wrote was true, including that his sister Pocha left him “locked

in,” and that he used the derogatory term—“perra”—to describe

Pocha. He added that “perra” is a “bad word” and that he erased

it. (Tr. 49:19-50:8.)

B.V. enjoys school and living in New York. He

testified that it was good to live in New York because “there

was a lot of trash in Ecuador. And there are a lot of accidents

because on occasion the traffic lights don’t work.” (Tr. 46:25-

47:4.) The child testified that his “mother’s family [wa]s

good” and his father’s family in Ecuador was bad. (Tr. 47:8-

10.) He would feel badly about living in Ecuador and was “a

little nervous” at the prospect. (Tr. 47:11-13.) B.V.

explained that he did not want his friends in Ecuador to see him

because he thought they “forgot about [him].” (Tr. 47:14-20.)

He also felt nervous about seeing his father’s family again

because he feared they would not remember him. (Tr. 47:21-25.)

B.V. testified that he wanted to stay in New York

because he thought it was good here and there were no trash and

no accidents. (Id.) B.V. testified that he preferred to be in

New York with his mother and did not want to live with his

father in Ecuador because his father “mistreats [him] and abuses

[him].” (Tr. 49:1-11.) However, the child was then shown

Exhibit 4, a picture of B.V. and petitioner, and asked if he had

a good time when he was with his father. (Tr. 52:16.) B.V.

initially answered that he did not know, and when pressed,

responded “[y]es” in English. (Tr. 52:17-24.) B.V. stated,

“perhaps the problem is that when my father takes me somewhere,

he always takes photos of me. And I don’t like that.” (Tr.

12.) The child testified that, during arranged visits with his

father around the time of the court’s initial May 10, 2019

hearing in this case, petitioner yelled at the child when he

spoke English to him. (Tr. 53-54.) B.V. also stated that he

did not want to visit with his father during his trip to New

York for the hearing, and that his father whispered in B.V.’s

ear that he was going to take B.V. to Ecuador, and B.V. told his

father that he did not want him to take him to Ecuador. (Tr.

43:8-21.) Finally, B.V. acknowledged that he met with Dr.

Eduardo Fernandez, a psychologist retained by his mother in the

instant proceeding, though B.V. testified that “[his] father

asked for a psychologist.” (Tr. 43:2.) B.V. stated that his

mother did not tell him what to say to Dr. Fernandez, that “I

myself told myself,” and that B.V. told him the truth. (Tr.

42:23-43:7.)

Based on the child’s foregoing testimony, the court

finds that B.V. credibly testified that he has suffered physical

abuse by petitioner with a belt on four occasions, though one

instance was likely a dream, and with a stick on one occasion,

and verbal abuse by his father on multiple occasions, and has

additionally witnessed his father strike his mother on one

occasion. The court further finds that the child, who was nine

years old at the time of the hearing and in the third grade,

expressed a strong desire not to return to Ecuador or see his

father because of the abuse which has led to his belief that his

father hates him and the child’s expression of hatred of, and

anger toward, his father. (Tr. 44-45.)

2. Petitioner’s Testimony

Petitioner testified to his general parental

discipline practices, stating that he never disciplined B.V. for

misbehaving, opting instead to speak to [his children] “at the

same level, to talk to them.” (Tr. 112:12-18.) He denied ever

abusing B.V. or punishing him, or any other of his children.

(Tr. 112:17-18.) He also denied tying up any of his children.

(Tr. 112:19-20.)

Petitioner admitted to “beating” B.V. once when he was

“very small,” around two or three years old. (Tr. 112:22-24;

113:21-24.) He then qualified his answer by questioning if one

could “call that ‘beating.’” (Tr. 112:23.) Recounting this

incident, petitioner testified that, in response to B.V.’s

refusal to eat “choclo,” a corn dish, while at an uncle’s house

in Ecuador, petitioner grabbed a “little piece of fabric,” which

was used as a belt for a little girl’s dress, and apparently

struck B.V. with it. (Tr. 113-14.) Petitioner explained that

“Uncle Pica” has young daughters who were small at the time, as

was B.V. (Tr. 113:21-24.) Though it is unclear where on the

child’s body, or how many times, petitioner struck B.V., he

testified that he did not hurt B.V. and that B.V. did not cry.

(Tr. 114:14.)

Petitioner also denied keeping weapons at his home or

traveling with hidden weapons in his vehicle, though he stated

he complied with Ecuadorian laws which required weapons

transported by car be unloaded and secured separately from

ammunition in locked boxes. (Tr. 115-16.) Petitioner testified

that he complied with these laws and placed his firearm in his

travel bag in the back seat. (Id.) He explained that he could

not travel with a loaded gun because he would lose his license

and the gun. (Tr. 117:1-3.)

Petitioner denied leaving B.V. or any of his other

children alone with a loaded weapon, citing the obvious risk

that the child might pull the trigger. (Tr. 115:1-8.)

Petitioner admitted he had weapons at his office or place of

work. (Tr. 115.) He testified that his office did not have a

place where he could sleep, lie down, or take a nap. (Tr.

116:14-21.) Petitioner also denied having weapons at home, and

specifically under his bed, explaining that his home was “a safe

place,” (Tr. 117:6-7), and admitted that traveling and working

at his office were the potential dangers, (Tr. 116:24-25).

Valles also recounted that when traveling with B.V.

who was asleep in his vehicle, B.V. awoke when the police were

checking the vehicle. Police found a “toy replica revolver

. . . not a firing weapon” beneath B.V.’s car seat, that had

been apparently left by petitioner’s grandson Kenneth. (Tr.

117-18.) Petitioner stated that B.V. was about five years old

at the time. The police also found petitioner’s weapon and

ammunition in separate locked cases, checked petitioner’s

documentation, and let him go. (Tr. 118.)

Petitioner also admitted to preparing photo albums to

post on the Facebook account that he created for B.V. (Tr. 119-

20, 147-48.) He also posted a photo to B.V.’s Facebook account

that he received from respondent, showing respondent and B.V. at

a paintball venue, in which he circled respondent and B.V. in

red. (Ex. 13, Photos.) Petitioner claimed that respondent was

pointing her paintball gun at B.V.’s head in the photo. (Tr.

119-21.) Petitioner admitted that he created B.V.’s Facebook

account, and has controlled and continues to control the

account. Petitioner posted the photographs appearing on B.V.’s

Facebook account. (Tr. 149.)

On cross-examination, petitioner was asked about his

declaration denying that he was physically or psychologically

abusive to respondent. (Tr. 122-23.) He conceded that

“constantly insulting and belittling someone” was abuse, as were

“throwing things,” “calling someone stupid or no brain or

animal,” “calling someone faggot or shit,” and calling a

girlfriend “elephant or fat while she is pregnant.” (Tr. 123-

24.) Valles also admitted that not paying for an uninsured

girlfriend’s medical expenses related to her pregnancy and

telling her to take a taxi to the hospital when her water breaks

would also be abusive. (Id.) Petitioner agreed with

respondent’s counsel that refusing to assist in parental duties

for a newborn would be abusive to both the mother and child as

would refusing to pay for the child’s needs. (Tr. 125:10-20.)

He also admitted that refusing to pay child support was abusive,

as is scolding the mother for begging for child support. (Tr.

125:21-126:3.) Petitioner also agreed that demeaning a mother

in from of the child, teaching a child to insult and scream at

his mother, telling a son that his mother is a bad mother, ugly,

fat, stupid, worthless or otherwise insulting the mother in

front of the child were abusive behaviors. (Tr. 127.) Valles

also conceded that “leaving a five- or six- or seven-year-old

child alone overnight with only a glass of milk for food” would

be abusive, (Tr. 127:19-21), as would allowing other family

members to abuse a child, (Tr. 128:20-22). He denied, however,

that leaving a child alone with a gun or weapon was abusive,

responding instead that it was irresponsible. (Tr. 128:23-25.)

Valles denied ever leaving his son alone. (Tr. 129.)

He admitted to leaving B.V. in the care of his daughter Pocha,

however, including overnight for pajama parties with B.V.’s

cousins when petitioner was not present. (Tr. 129-30.)

Petitioner testified that Pocha never left B.V. by himself

overnight or during the day, stating that she could have called

petitioner to pick him up because the two live four blocks away

from each other. (Tr. 130:18-20.) He added that “[t]he kid was

absolutely horrified at the possibility of being alone.” (Tr.

130-131.)

Petitioner denied refusing to pay child support for

B.V., though he acknowledged respondent had filed a complaint

with the Ecuadorian Family Court regarding child support. (Tr.

132-33.) He testified the two had “always agreed” to share the

cost of B.V.’s needs and education, but that after he assisted

respondent with obtaining a visa from a United States consulate

in Ecuador, she told him of her desire to live in the United

States with B.V. (Tr. 133.) After petitioner refused to

acquiesce to allowing B.V. to leave Ecuador with respondent for

a trip to the United States, petitioner stated that respondent

“blackmailed” him and told him “she was going to present a claim

for child support” if he did not authorize her to leave Ecuador

with B.V. (Ex. P, Visas; Stip. ¶ 13-14; Tr. 134.) Prior to this

dispute, petitioner testified that he and respondent shared the

costs of B.V.’s needs as they arose. That is, he paid for

B.V.’s “nourishment and studies” and for his clothing and

explained that B.V. apparently benefited from petitioner’s

social security payments and medical insurance. (Tr. 133; 135-

36.)

As a result of respondent’s suit for child support,

which petitioner opposed, the Ecuadorian Family Court ordered

petitioner to pay a fixed monthly amount in child support. (See

Tr. 137, 138-39.) Petitioner stated he did not receive proper

notices from the Court, and appealed the child support ruling,

but was not successful. (Tr. 136:19-137:4.) Petitioner did not

mention in his opposition to respondent’s request for child

support that she had previously attempted to blackmail him.

(Ex. AC; Tr. 137:17-25; 139:10-21.) Sometime in 2016, however,

Valles petitioned the Family Court to reduce his child support

obligations, claiming he had another child to support; the

request was denied by the court. (Tr. 139:19-23.)

Earlier, in 2015, petitioner filed a complaint

alleging that respondent had abused B.V., though she was

ultimately found innocent by the Ecuadorian Family Court on

August 20, 2015. (Tr. 139-40.) Petitioner admitted that B.V.

had hurt himself in an accident at school and was not injured by

respondent. (Tr. 142.) Petitioner denied, however, that the

court also found that he had influenced B.V.’s testimony to

state that his mother had hit him. (Id.; Ex. AK, Aug. 20, 2015

Op. 3.) The Ecuadorian Family Court’s August 20, 2015 decision

noted that petitioner’s repeated questioning of B.V. whether his

mother had beaten him had induced B.V. to answer in the

affirmative, and that petitioner as an adult, influenced B.V.’s

response when B.V. was five years old. (Tr. 145-46.)

Petitioner appealed the family court decision, and was aware

that if his allegation of child abuse by respondent against B.V.

was upheld, she could be put in jail. (Tr. 147.) Petitioner

acknowledged that respondent was “saved from jail because of the

report prepared by the teacher,” which stated that B.V. “was

injured by hitting a chair.” (Tr. 140; see also Stip. ¶¶ 15-17;

Ex. AK, Aug. 20, 2015 Op. 3.)

Petitioner denied that he yelled at B.V. during their

visits in New York around the time of the hearing. He also

denied that he was upset that B.V. was speaking English and

testified that he was happy to hear him do so. (Tr. 150-51.)

Petitioner further stated that if B.V. is returned to Ecuador

and his mother, respondent, remains in New York, “we will

continue to have the same life that my son had before, I will

get him back into the same school, the FAE [military school],

and I will take care of him as I always have taken care of him.”

(Tr. 154.) Petitioner referenced the photos of B.V. in Ecuador,

that he claimed showed no mistreatment, that B.V. was well

dressed, enjoying his extended paternal family in Pasaje,

Ecuador, and friends in Guayaquil. He stated that “a picture

says more than a thousand words.” (Tr. 153-54.)

Petitioner stated that he bought B.V. a cell phone

when he was six years old and that he learned to write and text.

B.V. has the phone numbers of petitioner’s relatives programmed

in the phone, but petitioner was not aware if B.V. texted his

sister Pocha. (Tr. 157-59.)

3. Respondent’s Testimony

Respondent testified to the early stages of her

relationship with petitioner which started in 2005 and lasted

six years. (Tr. 165-66.) Petitioner, who had five adult

children, told respondent he did not want to have a child with

her. When respondent became pregnant with B.V., petitioner was

indifferent, would yell at her, and told her their unborn child

was not his. (Tr. 168-69.) Petitioner would also call

respondent “whale” and “elephant,” and said that the child she

was carrying was the son of a whore. (Tr. 170-71.) She also

testified that she covered her own medical expenses during that

time, with some assistance from her aunt in New York, her

grandmother, and rental income from respondent’s home in Duran.

(Tr. 170.) Petitioner would not even provide her food during

her pregnancy, stating that she had no reason to eat. (Tr.

169:9-15; 169:23-170:4.) Respondent testified that, after B.V.

was born, Valles would “towards us . . . always shout with

insults,” that “he was always offending us,” all in the presence

of B.V. (Tr. 166:9-16.) While the petitioner and respondent

resided together, petitioner would not let respondent see her

friends or family. {Tr. 167.)

When respondent’s water broke and she went into labor

in the middle of the night, petitioner at first told her to take

a cab to the hospital, but eventually dropped her off outside

the hospital and never visited her, despite calls from the

doctors. (Tr. 171-72.) She returned home after B.V. was born,

driven by the couple’s maid, and found petitioner once again

indifferent. (Tr. 172:22-25.) Respondent testified that

petitioner refused to pick up B.V. and would get upset when B.V.

cried, yelling at respondent to “make that piece of shit shut up

or be quiet.” (Tr. 173.) Valles did not purchase clothes,

diapers, or other necessities for newborn B.V. for the first

year, though he offered to pay respondent up to $30 per month.

(Tr. 174.)

During the time petitioner, respondent, and B.V. lived

together, “the relationship was conflict ridden.” (Tr. 166:9.)

Petitioner would constantly offend respondent by calling her

stupid, an elephant, saying she was fat, and telling her to

“shut up, don’t remind me of what you are, a whore.”

Petitioner’s shouting and insults occurred in the presence of

B.V. (Tr. 166.) Eventually, respondent left petitioner and

moved with B.V. to Duran when B.V. was about one year and five

months old. (Tr. 174.) Petitioner said it was fine for her to

leave, not to expect to get anything from him, and to “take that

piece of shit” with her because petitioner “was not going to go

looking for him.” (Tr. 174-75.) It was difficult for

respondent to make a living on her own to support herself and

the child, so she sought help from her family and from

petitioner. (Tr. 176.) She would occasionally visit Valles at

his warehouse to ask for money for the child, noting that

petitioner was not always timely with his promised payments and

would sometimes miss payments entirely. (Tr. 176:5-15.)

Respondent would bring B.V., then three or four years old, (Tr.

177:14-15), with her to the warehouse, but Valles would “throw

[her] out of the warehouse yelling at [her] again, calling [her]

puta, a whore,” (Tr. 176:23-25). Respondent testified that, in

B.V.’s presence, petitioner physically pushed her out of the

warehouse, calling her a whore, and refusing to give her money.

(Tr. 176:19-25; 177:11.) Though she obtained court-ordered

monthly child support of approximately $103 in 2015, Valles

eventually sought to reduce this monthly amount to $70, arguing

that he had another child to support. (Tr. 178:4-17.)

Respondent contended, however, that this was a lie because

petitioner’s other children had reached adulthood by then. (Tr.

178:18-23.)

Respondent also testified about petitioner’s visits

with B.V., starting around three months after respondent moved

to Duran, around the time B.V. was nearly two years old. (Tr.

180.) At first petitioner would visit respondent and B.V. for a

few hours, twice a month. (Tr. 180-81.) Then, when B.V. was

older, closer to three years old, petitioner would take B.V. for

a few hours and leave respondent’s home, again, twice a month.

(Tr. 181: 8-19.) Respondent testified that when she “would go

to drop B.[V.] off, when [she] would go to pick him up,”

petitioner “would not miss the opportunity to insult me and

abuse me in the presence of my son.” (Tr. 166.) After B.V.

would return from these visits, he appeared to be “upset and he

would yell at [respondent] and insult [her].” (Tr. 167.)

Respondent also testified that B.V.’s behavior apparently

changed in school: the boy “started also insulting his

classmates and he would laugh about it,” as reported to her by

the teacher. (Tr. 167-68.) Respondent claimed she paid for

B.V.’s school at the F.A.E. military academy and his swimming

lessons. (Tr. 179-80.)

Respondent testified that while she lived with

petitioner he kept guns in their home in the upper part of a

closet or in the lower drawers. (Tr. 175:4-15.) Respondent

testified that at one time, when she was working in Valles’

warehouse early in their relationship, she heard Valles receive

a death threat by a man named Guido. (Tr. 198-99.) She also

testified that petitioner hid weapons “in the front part of the

car in a secret compartment that had . . . a cover under the

hood,” (Tr. 184:5-8), and she occasionally observed petitioner

putting guns in the hidden compartment of his truck, (Tr. 185-

87; Ex. W, Photo.). On this basis, she objected to petitioner’s

driving with B.V. to a town called Pasaje because she believed

petitioner was “carrying weapons hidden in the car with [her]

son there.” (Tr. 183:14-16.) She confronted petitioner about

driving B.V. while transporting hidden weapons, but petitioner

responded that she “shouldn’t concern [her]self with what he is

doing.” (Tr. 188:9-12.) The court credits the testimony of

B.V. and respondent that petitioner hid guns in his vehicle

while transporting B.V., and stored guns in his home.

Regarding the incident where petitioner allegedly

handed B.V. a loaded gun, respondent confronted petitioner after

hearing about the incident from B.V. (Tr. 234:2-15.)

Petitioner denied the gun was real and insisted it was a toy

gun. (Tr. 234:15-16.) Respondent had asked petitioner “what

had happened with the office computer,” and he responded that he

did not know, it simply “broke down,” though B.V. told

respondent that the “bullet had grazed through the computer” and

“traveled near the father.” (Tr. 234:16-21.) According to

respondent, B.V. did not have toy guns, and Valles did not keep

toy guns at his office. (Tr. 235.) The court credits B.V.’s

testimony that petitioner allowed him to hold a loaded firearm

that accidentally discharged and damaged petitioner’s office

computer, and discredits petitioner’s testimony that it was a

toy gun.

Respondent testified to instances where she believed

petitioner’s daughter, Pocha, and ex-wife, Berta Cuenca, abused

B.V. or locked him in a room. It is undisputed that petitioner

sometimes left B.V. in the care of his adult daughter Pocha, and

ex-wife Cuenca in Pasaje when he went to Guayaquil to work.

(Tr. 201-02.) As to Cuenca, B.V. told respondent in 2017 that

Cuenca used to beat B.V. and “would leave him alone locked in

the house together with Kenneth,” Cuenca’s and petitioner’s

eleven-year-old grandson. (Tr. 202:4-12, 203:17; 208-09.) B.V.

reported to respondent that Cuenca physically hurt him on three

occasions, but petitioner denied abuse and said respondent was

crazy when respondent confronted him. (Tr. 203-04.) Petitioner

told respondent that B.V. sustained bruises on his legs after

jumping on a mattress while staying with Cuenca. (Id.) As to

Pocha, respondent testified that she had heard from B.V. that

Pocha left him alone overnight, at least four times, based, in

part, on B.V.’s telling respondent that he woke up at Pocha’s

house in the middle of the night to find no one there.12 (Tr.

205-10.) Respondent offered evidence of a text message between

Pocha and B.V., date-stamped February 22, 2018, 10:09 a.m.,

where the child appears to be alone at Pocha’s home and asks

Pocha where she is; Pocha tells B.V. that she is out running an

errand. (Tr. 206-07; Ex. N, Text Msg. Excerpts.)

In another message, from B.V. to respondent around

Christmas 2017, when B.V. was away from his mother and spending

the holiday with petitioner, he stated that he missed her and

indicated he was crying. (Ex. N, Text Msg. Excerpts 8.)

Petitioner and respondent had agreed that B.V. would spend a

portion of Christmas with petitioner, though respondent

12 Respondent testified as to these statements by B.V. over petitioner’s

foundation objection. (Tr. 205:10.)

testified that petitioner had left B.V. with his family in

Pasaje, while petitioner returned to Guayaquil for work. (Tr.

201:6-10.) When respondent called petitioner to discuss why

B.V. was upset over the Christmas holiday, petitioner told her

it was not her problem, and that she should not call because he

was very busy. (Tr. 208.)

Respondent also testified that at one time, B.V.

returned home from a visit with his father with two red marks on

his buttocks, made by petitioner with a belt. (Tr. 204:18-25.)

Petitioner admitted to respondent that he had hit the child

because he refused to eat. (Tr. 204-05.)

Respondent denied coercing petitioner into assisting

her with obtaining visas to the United States. (Tr. 210-11.)

In 2014, though petitioner had initially agreed to let B.V.

travel to the United States with respondent, he apparently

reneged after respondent had purchased airline tickets, and

demanded respondent sign a document that would waive all of her

parental rights and grant petitioner full custody of B.V. (Tr.

211:2-15.) Although petitioner threatened her with an attorney

and judge who were friends, respondent refused to sign the

documents, and instead sought to travel to the United States

alone. (Tr. 212.) Petitioner had initially agreed to look

after the child, and when respondent came to drop off B.V.,

petitioner became angry when he learned that respondent planned

to be away for two months. (Tr. 212:7-15.) He refused to look

after the child for more than one week, and respondent instead

dropped B.V. off with her family in another part of Ecuador.

(Tr. 212:16-20.)

Eventually, petitioner agreed to allow B.V. to travel

to the United States with respondent in 2016. (Tr. 213.)

Respondent testified that B.V. loved his time in the United

States, stating he wanted to stay because he did not want

petitioner to continue to insult them. (Tr. 213.) Respondent

and B.V. returned to Ecuador but planned another trip in 2018.

(Tr. 214.)

In 2018, as part of an agreement, petitioner “accepted

voluntarily” respondent’s plan to visit the United States with

B.V., (Tr. 227:8-9), so long as respondent and B.V. returned by

May 2, 2018, as directed by an Ecuadorian Court, (Tr. 227:10-

13). On April 1, 2018, respondent and B.V. left again for the

United States, to visit her aunt, who had lost her Elmont home

and moved to Jackson Heights, as respondent learned after she

arrived in New York with B.V. (Tr. 215; 227:10-13.) Though

B.V. and respondent were scheduled to return to Ecuador on May

2, 2018, respondent chose to remain in the United States because

B.V. did not want to leave, and respondent did not want to

“subject[ him] to the usual abuse” if they returned to Ecuador.

(Tr. 216.) Respondent was unaware that petitioner had advised

the Ecuador Family Court that respondent and B.V. had failed to

return to Ecuador. Respondent was also unaware that her

attorney had apparently filed a document on her behalf in

Ecuador, pursuant to a 2015 authorization she had signed,

explaining that her decision not to return to Ecuador was due to

the need to take care of a sick relative in the United States.

(Tr. 216-17; Ex. 11, Counsel’s Ltr.)

In July 2018, respondent emailed petitioner, attaching

a photo of B.V., stating that B.V. was fine and healthy,

requesting petitioner not harm her and B.V., and including a

phone number for petitioner to call. (Tr. 219-20.) Respondent

testified that she had not received a phone call from petitioner

at that number. (Tr. 220:7-15.) She agreed with petitioner’s

counsel, however, that while she lived in Duran, she made a safe

home for her son. (Tr. 224:11-14; 230:24-231:5.)

Respondent testified that she will not return to

Ecuador, even if B.V. is returned. (Tr. 221:1-10.) Respondent

stated her belief that returning would risk being put in jail by

petitioner, and that she would not be able to protect B.V. from

continued abuse by petitioner, or risk from petitioner’s gun

business. (Id.) When asked by the court, respondent testified

she never requested that an Ecuadoran court “take measures to

protect her son from the physical abuse” and neglect she claims

occurred, because she feared petitioner’s retaliation. (Tr.

231:7-18.) Specifically, she feared that he might have her

killed because he “on one given occasion” had told her “he would

be sending this Colombian guy to make [her] disappear,” or that

he might take her home away. (Tr. 232.) She also believed

petitioner would try to put her in jail, because he told her as

much after alleging she abused B.V. (Tr. 232:18-25.)

Petitioner repeated his threat of jail to respondent in May

2018, during a call that she arranged between B.V., respondent,

and petitioner, after she arrived in New York with B.V. (Tr.

219-20; 233:1-6.) Petitioner insulted respondent during the

call and told her she “would have to pay,” and that “he will do

everything possible to get me in jail.” Respondent was scared,

and B.V. was listening, so she hung up. Petitioner did not send

any emails to respondent between May 2018 and April 30, 2019.

(Tr. 220.) Respondent also testified to her understanding that

B.V. does not want to return to Ecuador because he does not want

them to be abused by petitioner. (Tr. 220.)

4. Arial Gould, Esq., Immigration Attorney

Arial Gould is an immigration staff attorney with Make

the Road, a non-profit organization that provides legal services

to immigrants in New York. (Resp. Prop. ¶ 4; Tr. 56:14-57:11.)

Gould testified that individuals without legal status in the

United States are at high risk of removal if they have “criminal

convictions [or] arrests, [were] deni[ed prior] applications

[for status], or [were the subject of] a prior removal order.”

(Tr. 57:22-58:6.) She concluded that, although respondent and

child have overstayed their tourist visas, they do not face an

immediate risk of deportation. Supporting Gould’s assessment of

respondent and B.V.’s risk of deportation is the fact that New

York is a so-called “sanctuary city,” which permits individuals

without lawful status to seek and receive certain City-provided

benefits without fear that certain information will be shared

with immigration authorities. (Tr. 21:59:9.)

Gould also testified that, even though respondent has

not yet applied for relief or a change of immigration status,

she may still do so during the pendency of any removal

proceeding. (Stip. ¶ 61-62; Tr. 59:12-60:3; 63:10-21.)

Respondent could apply for relief under the Convention Against

Torture alleging both domestic violence and a fear of domestic

violence where the country of origin acquiesces or takes no

action to prevent domestic violence. (Tr. 60:4-61:2.) Gould

testified that, although her experience with Ecuador was

limited, she was “aware of a general problem . . . with domestic

violence” and “a lack of Government action” to protect victims.

(Tr. 61:4-11.)

According to Gould, if respondent and child were the

subject of removal proceedings, the process could take three to

five years in the immigration court with an additional one to

two years for appeals to the Board of Immigration Appeals. (Tr.

63:22-64:8.) Gould testified that there was no “immediate risk

of any [immigration] process [de]stabilizing [the child’s]

life.” (Tr. 64:20-23.) In addition to the Convention Against

Torture, Gould listed other ways respondent could obtain relief:

seeking asylum, applying for a “withholding of removal,” or

applying for an “immediate relative” or “spousal” petition.

(Tr. 64:12-18.)

Based on Gould’s undisputed testimony, the court finds

there is no immediate risk that child and respondent would be

subjected to removal proceedings and that, in any event, this

process would take several years to conclude and respondent has

available to her several ways to obtain relief.

B. Dr. Edward Fernandez, Psy.D.

Dr. Fernandez is a licensed clinical psychologist in

New York. (Resp. Prop. ¶ 5; Tr. 270:12-271:1; Ex. AS, Fernandez

CV.) He is fluent in English and Spanish and holds a doctoral

degree in clinical psychology. (Resp. Prop. ¶ 6; Tr. 271:24-

274:24.) Dr. Fernandez’s practice focuses on post-traumatic

stress disorder (“PTSD”), personality disorder, and includes

working with abused spouses. (Resp. Prop. ¶¶ 7-8.) The court

qualified Dr. Fernandez as an expert in evaluating and assessing

childhood trauma, and specifically here, the child’s age and

maturity, his ability to recount events of abuse, and risk of

psychological and physical harm if he is returned to Ecuador.

(Tr. 282:18-283:19.)

In reaching his opinions, Dr. Fernandez considered

over 2000 pages of the documents produced in this action and

both the child’s and petitioner’s hearing testimony. (Ex. AT,

Fernandez Materials Considered; Tr. 285:4-286:19.) He also

reviewed two psychological reports, one regarding the child

alone, dated July 28, 2015, (Tr. 337:4-338:9 (citing Ex. AJ,

July 28, 2015, Psych. Eval.)), and the other regarding both

parents and the child, dated September 7, 2015, (Tr. 290:19-20

(citing Ex. AM, Psych. Eval.)), and both conducted by mental

health professional Susanna Veloz Nicola in Ecuador. Dr.

Fernandez also reviewed the photos posted by petitioner on

B.V.’s Facebook account, which Dr. Fernandez described as

petitioner’s attempt to portray a happy family. (Tr. 286-86.)

Dr. Fernandez reviewed the July and September 2015 psychological

reports of the parents and B.V. by the Ecuadorian psychologist,

filed as part of the 2015 proceeding brought by petitioner

alleging abuse by respondent. (See Ex. AJ, July 28, 2015,

Psych. Eval.; Ex. AK, Aug. 20, 2015 Op.; Ex. AL, H’rg Record;

Ex. AM, Psych. Eval.) Dr. Fernandez noted the visitors’ log

showed that respondent and B.V. had appeared for family therapy

recommended by the Ecuadorian Family Court, but petitioner did

not. (Exs. AB, Visitor Log; Ex. AI, Soc. Worker Rept. 4; Tr.

288-89, 292:12-16, 292:22-23, 296:9-15.) As the court has

already noted, though, it cannot conclude that petitioner was

necessarily ordered to attend these sessions during the dates on

the visitor’s log, based on the record before it. Dr. Fernandez

also reviewed the hearing testimony of petitioner and the child,

B.V.

In advance of the hearing held by this court, Dr.

Fernandez interviewed and evaluated both child and respondent.

(Resp. Prop. ¶ 10; Ex. AT, Fernandez Materials Considered; Tr.

285:4-286:19.) He interviewed B.V. for approximately 30 to 45

minutes in the child’s home and outside the presence of

respondent. (Tr. 325:9-327:1; 302:15-16.) Dr. Fernandez

testified at the hearing that the child became emotional and

began to “dissociate” when his questioning turned to “the

traumas that [the child] experienced perpetrated by

[petitioner].” (Tr. 326:1-6.) The court notes that B.V.

exhibited similar discomfort during the court’s in camera

examination when he described the physical and emotional abuse

by petitioner. Like Dr. Fernandez, the court did not press for

extensive responsive, given the child’s apparent discomfort

answering questions.

Dr. Fernandez also interviewed respondent for

approximately 90 minutes, outside the presence of the child,

though at one point the child entered the room to retrieve

something, observed his mother crying, and attempted to console

her. (Tr. 326:10-20; ECF No. 18, Fernandez Rept. 7.13)

As a result of his examination of both B.V. and his

mother, Dr. Fernandez testified that respondent and B.V. have a

“very strong bond” and that respondent provides a stable living

environment for her son. (Tr. 307:1-8; 315:2-9.) Moreover,

Dr. Fernandez testified that he did not observe signs of

“loneliness, anger or fear of abandonment” in the child. (Tr.

344:17-19.) He testified that the child was “very stable,

joyful, happy,” had a “secure relationship with his mother and

his aunt,” and took part in “recreational activities.” (Tr.

344:21-25.)

Dr. Fernandez did not, however, explore the

possibility of trauma from the child’s alleged abduction by

respondent, and his removal from his community in Ecuador. (Tr.

334:6-24; 335:15-21.) He allowed that it was possible that a

child, “taken by a parent without authorization” to another

country, could “experience loss of community and stability,

leading to loneliness, anger, and fear of abandonment.” (Tr.

335:15-21.) Dr. Fernandez recalled that the child referred to

some “limited social network” in Ecuador, including his

connections through school, but could not recall the names of

13 Respondent did not offer, and the court did not admit, Dr. Fernandez’s

report of his interview and assessment of B.V. at the hearing. Instead,

respondent filed it in advance of the hearing

any specific friends the child may have mentioned. (Tr. 336.)

He concluded that B.V.’s “connection to that community, . . .

wasn’t anything that [he] found . . . specifically relevant to .

. . the areas [he] commented on.” (Id.) Though Dr. Fernandez

recalled reading that “the child has a fear that his friends

back in Ecuador have forgotten him,” it did not come up during

his interview with the child. (Tr. 336:22-337.)

Dr. Fernandez offered three opinions, rendered with a

degree of psychological certainty based on B.V.’s testimony,

observed behaviors, and documents regarding his developmental

progression. First, he opined that B.V.’s age and maturity

allow for consideration of the child’s expressed desire not to

return to Ecuador. Dr. Fernandez based his first opinion

regarding B.V.’s emotional and intellectual maturity on his

observations of B.V. expressing empathy toward his mother, his

description of a logical sequence of events that led to his

decision, including specific incidents that “led him to his own

decision that he does not want to be with his father.” (Tr.

300.)

In relation to this first opinion, Dr. Fernandez found

that B.V. had not been influenced by external forces. His

review of the psychological reports from Ecuador indicated that

although there was no evidence that the mother had tried to

influence B.V. during the abuse proceeding commenced by

petitioner, there was evidence that petitioner had tried to

influence B.V. to say he had been abused. Dr. Fernandez

testified that his review of documents and interviews

“established a pattern of behavior that the child . . . is able

to tell the truth.” (Tr. 301.)

Second, Dr. Fernandez opined that B.V.’s account of

physical and emotional abuse was not based on respondent’s

influence. Dr. Fernandez stated that B.V.’s recent school essay

calling his sister, Pocha, a dog was “particularly troubling”

given the spontaneity and emotional content of that word in

Spanish, which showed B.V. had his “own experience of abuse and

ma[de] his own determination about it.” (Tr. 301.) According

to Dr. Fernandez, B.V.’s school essay, (Ex. Q, School Essay),

reflects a strong, visceral use of a culturally grotesque and

nasty word for a woman which use indicates extreme abuse. (Tr.

301; 320-21.) In the essay, B.V describes being locked in by

his sister, Pocha, with whom petitioner admitted leaving B.V.

for sleepovers. The unprompted use of the word “perra” by B.V.

in his essay, demonstrates a strong response and extreme

emotions which, in Dr. Fernandez’s experience, arise from

extreme abuse. Although B.V. did not discuss with Dr. Fernandez

being tied up by Pocha, he did tell Dr. Fernandez that his

father had tied him up and let him alone. Based on B.V.’s

essay, Dr. Fernandez found accurate B.V.’s account of being

placed in an area of seclusion with no information or

accessibility to anyone else, until someone comes back for him.

(Tr. 321-22.) According to Dr. Fernandez, the intense fear that

a child expresses about being left alone, as recounted by

petitioner, has many different negative psychological effects.

(Tr. 319.)

Dr. Fernandez also concluded that B.V.’s account of

abuse by petitioner was not unduly influenced by his mother,

based on the pattern of behavior and spontaneity of his

responses. (Id. at 302.) Although B.V. and Dr. Fernandez had a

good rapport at the beginning of their interview when B.V.

answered questions about his life in Ecuador and New York,

B.V.’s emotional responses “completely changed when discussing

incidents of abuse . . . back in Ecuador.” B.V. demonstrated

similar behaviors during his interviews with Dr. Fernandez and

the court, turning away as he spoke, attempting to self soothe

with short answers, seeking his mother’s comfort and asking when

the interview would end. (Tr. 304.) Rather than evading

telling the truth, Dr. Fernandez testified that in his

experience with children, B.V.’s response was specific to an

abuse response as the child engaged in self-soothing behaviors.

Dr. Fernandez, who focused his evaluation on the

child, also interviewed respondent and found her responses were

consistent with experiencing domestic violence over a lengthy

period of time, based on her emotional reactions and difficulty

discussing the topic. (Tr. 306.) Dr. Fernandez found that

respondent and B.V. share an emotional closeness and respondent

provides a stable living environment, and overall stable mental

health for both. (Tr. 307.) Dr. Fernandez further testified

that B.V. was a “very stable, joyful, happy child that looked to

be emphatic and have a secure relationship with his mother and

his aunt.” (Tr. 344.)

Dr. Fernandez explained respondent’s reluctance to

return to Ecuador was based on respondent doing everything in

her power to keep her son with her for what she believes is his

protection, based on the nature of the abuse. The statement of

respondent that she would not return to Ecuador if B.V. is

returned, was, in Dr. Fernandez’s experience, based on

respondent’s inability to even fathom a possibility that would

cause extreme emotional distress because she has found stability

and distance from severe trauma and is able to provide for her

son. (Tr. 308.) Dr. Fernandez added that respondent

experienced extreme emotional abuse from petitioner that caused

trauma by being financially deprived and called derogatory

names, and that such emotional trauma is often overlooked

because it is not visible like physical abuse. The court finds

that B.V. suffered physical and emotional abuse and witnessed

his mother suffering the same.

As his third opinion, Dr. Fernandez’s concluded that

B.V. will “be at grave risk if returned to Ecuador or placed in

the custody or environment with his father,” based on

petitioner’s failure to recognize and accept responsibility for

his abuse of B.V. (Tr. 299.) Dr. Fernandez testified that

petitioner denied, qualified, or minimized the hitting of B.V.

with a belt by stating it was a girl’s belt. (Tr. 313-14.)

Based on petitioner’s testimony and Dr. Fernandez’s

understanding that petitioner failed to participate in family

therapy sessions in Ecuador, Dr. Fernandez testified that a risk

of recidivism is high when an abuser fails to accept or

recognize abuse, or minimizes his own conduct, and the abusive

behavior will not change. (Tr. 313-14.)

The court finds, based on the foregoing clear and

convincing evidence, that B.V. suffered physical and emotional

abuse by petitioner and petitioner’s relatives, and that, based

on clear, convincing, and undisputed psychological evidence,

B.V. faces a grave risk of physical and psychological harm if he

is returned to petitioner’s custody in Ecuador. The court

further finds, based on its own observations and Dr. Fernandez’s

testimony, that B.V. is of sufficient age and maturity, for the

court to consider B.V.’s strong objection to being returned to

Ecuador and seeing his father.

CONCLUSIONS OF LAW

“The Hague Conference on Private International Law

adopted the Hague Convention on the Civil Aspects of

International Child Abduction in 1980.” Chafin v. Chafin, 568

U.S. 165, 168 (2013) (citing T.I.A.S. No. 11670, S. Treaty Doc.

No. 99-11). The Convention seeks to protect children from the

harmful effects of wrongful removal, and accordingly establishes

procedures to ensure their prompt return to the state of their

habitual residence. Abbott v. Abbott, 560 U.S. 1, 8 (2010).

The selected remedy of repatriation is “designed to ‘preserve

the status quo’ in the child’s country of habitual residence and

‘deter parents from crossing international boundaries in search

of a more sympathetic court.’” Souratgar v. Lee, 720 F.3d 96,

102 (2d Cir. 2013) (quoting Blondin v. Dubois (“Blondin II”),

189 F.3d 240, 246 (2d Cir. 1999)).14

The United States has ratified the Convention through

the International Child Abduction Remedies Act (“ICARA”).

Chafin, 568 U.S. at 168. ICARA authorizes a person seeking a

14 There are four Blondin decisions relevant to this Order: (1) Blondin v.

Dubois, 19 F. Supp. 2d 123, 124–26 (S.D.N.Y. 1998) (“Blondin I”) (finding

grave risk of harm exception applied); (2) Blondin v. Dubois, 189 F.3d 240,

242–44 (2d Cir. 1999) (“Blondin II”) (affirming finding of grave risk but

remanding for district court to determine whether ameliorative measures could

mitigate risk of harm); (3) Blondin v. Dubois, 78 F. Supp. 2d 283, 288–93

(S.D.N.Y. 2000) (“Blondin III”) (finding that no ameliorative measures would

overcome grave risk of harm due to relapse of children’s traumatic stress

disorder); and (4) Blondin v. Dubois, 238 F.3d 153, 157 (2d Cir. 2001)

(“Blondin IV”) (affirming finding below and approving district court’s

consideration of child’s well-settlement and expressed wishes to remain in

the United States under Article 13(b)).

child’s return to file a petition in state or federal court and

instructs that the court “shall decide the case in accordance

with the Convention.” 22 U.S.C. §§ 9003(a)-(b), (d). If the

child in question has been “wrongfully removed or retained

within the meaning of the Convention,” the child shall be

“promptly returned,” unless one of the exceptions expressly

provided for in the Convention applies. Id. § 9001(a)(4).

The petitioner bears the initial burden of proving

that the child was wrongfully removed or retained by a

preponderance of the evidence. Souratgar, 720 F.3d at 102; 22

U.S.C. § 9003(e)(1)(A). Once the petitioner establishes that

the removal or retention was wrongful, the child “must be

returned unless the [respondent] can establish one of four

affirmative defenses.” Souratgar, 720 F.3d at 102 (emphasis

added).

Respondent’s burden of proof in proving an affirmative

defense turns on which defenses she invokes. Though there are

four exceptions that a respondent may invoke to overcome a

petitioner’s prima facie case, only two are relevant here15:

15 The Convention enumerates four affirmative defenses: (1) the petition

was filed more than a year after the child was wrongfully removed and “the

child is now settled in its new environment,” Hague Convention, art. 12; (2)

the petitioner “was not actually exercising the custody rights at the time of

removal or retention, or had consented to or subsequently acquiesced in the

removal or retention,” id., art. 13(a); (3) “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,” id., art. 13(b); and

(4) the return of the child “would not be permitted by the fundamental

Article 13(b)’s so-called “grave risk” defense; and the

unnumbered Article 13 defense permitting the court to consider a

mature child’s objections to return. (See Resp. Prop. 25, ¶ 6.)

First, a respondent may prove by clear and convincing evidence16

that there is a “grave risk” that returning the child would

expose him or her to physical or psychological harm. 22 U.S.C.

§ 9003(e)(2)(A). Second, a respondent may prove by a

preponderance of the evidence17 that the child objected to being

returned and “ha[d] attained an age and degree of maturity at

which it [wa]s appropriate to take account of [the child’s]

views.” Id. § 9003(e)(2).

Even where an affirmative defense has been

established, it remains within the discretion of a court whether

to allow the child to remain with the abducting parent or to

order repatriation. See Souratgar, 720 F.3d at 102–03; In re

principles . . . relating to the protection of human rights and fundamental

freedoms,” id., art. 20. Additionally, Article 13 includes an unnumbered

provision whereby the court can consider a child’s objection to return if the

child has attained an age and maturity where it is appropriate to consider

their wishes. Id., art. 13.

16 To meet the clear and convincing evidence standard, the evidence

presented must “place in the ultimate factfinder an abiding conviction that

the truth of the factual contentions is highly probable.” Colorado v. New

Mexico, 467 U.S. 310, 314 (1984) (explaining that to meet the clear and

convincing evidence standard, the evidence presented must “place in the

ultimate factfinder an abiding conviction that the truth of the factual

contentions is highly probable”); see also Black’s Law Dictionary (10th ed.

2014) (defining “clear and convincing” as “highly probable” or “reasonably

certain”).

17 To meet the preponderance of the evidence standard, the evidence

presented must “prove that the fact is more likely true than not true.”

Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Henry v. Dep't of

Transp., 69 F. App’x 478, 480 (2d Cir. 2003).

D.T.J., 956 F. Supp. 2d 523, 529 (S.D.N.Y. 2013). Moreover, the

Second Circuit has emphasized that these exceptions are to be

interpreted narrowly. Souratgar, 720 F.3d at 102-03 (“[E]ven

where the grounds for one of these ‘narrow’ exceptions have been

established, the district court is not necessarily bound to

allow the child to remain with the abducting parent.” (quoting

Blondin II, 189 F.3d at 246 n.4)); see also Lozano v. Alvarez,

697 F.d 41, 56 (2d Cir. 2012).

Here, as discussed below, petitioner has clearly met

his burden of establishing a prima facie case, of wrongful

removal or retention under the Hague Convention. Respondent,

however, has also demonstrated by clear and convincing evidence

that returning B.V. would subject him to a “grave risk” of

physical or psychological harm, making return discretionary.

I. Prima Facie Case of Wrongful Removal

The court first evaluates petitioner’s prima facie

case of wrongful removal or retention. Petitioner must

demonstrate that:

(1) the child was habitually resident in one State and has

been removed to or retained in a different State;

(2) the removal or retention was in breach of the

petitioner’s custody rights under the law of the State

of habitual residence; and

(3) the petitioner was exercising those rights at the time

of the removal or retention.

Gitter v. Gitter, 396 F.3d 124, 130–31 (2d Cir. 2005); see also

22 U.S.C. § 9003(e)(1)(A). The petitioner must establish these

requirements by a preponderance of the evidence. 22 U.S.C. §

9003(e)(1)(A). Respondent apparently does not dispute that

petitioner established each element of his prima facie case, and

instead only argues the defenses discussed above. (Resp. Prop.

25-26.) Nevertheless, the court must satisfy itself that

petitioner has met his burden and, based on the following, finds

that he has.

A. Habitual Residence

First, the petitioner must show that the child was

habitually resident in the state from which he or she was

removed. Gitter, 396 F.3d at 130-31.18 Though the Hague

Convention does not define “habitually resident,” id. at 131,

the parties have apparently stipulated that Ecuador was the

child’s “habitual residence,” and the court finds this

requirement is satisfied. (Stip. ¶ 7; Pet. Prop. 16.)

B. Removal in Breach of Custody Rights

Second, the petitioner must show that the removal was

in breach of his or her custody rights under the laws of the

State of habitual residence. Gitter, 396 F.3d at 130-31.

18 Article 4 of the Hague Convention provides that “[t]he Convention shall

apply to any child who was habitually resident in a Contracting State

immediately before any breach of custody or access rights.” Hague

Convention, art. 4 (emphasis added). Ecuador is both a party to the Hague

Convention and a U.S. Treaty Partner. See U.S. Hague Convention Treaty

Partners, U.S. Dep’t of State, https://travel.state.gov/content/travel/

en/International-Parental-Child-Abduction/International-Parental-Child-

Abduction-Country-Information/Ecuador.html (last accessed October 2, 2019).

Federal courts look to the “law of the child’s place of habitual

residence to determine whether a petitioner possessed lawful

rights of custody at the time of a child’s removal.” Norden–

Powers v. Beveridge, 125 F. Supp. 2d 634, 638 (E.D.N.Y. 2000).

Custody rights include “rights relating to the care of the

person of the child and, in particular, the right to determine

the child’s place of residence.” Hague Convention, art. 5(a);

see also Norden-Powers, 125 F. Supp. 2d at 638. Moreover, “a

court ‘may take notice directly of the law of . . . the State of

the habitual residence of the child, without recourse to the

specific procedures for the proof of that law.’” Lachhman v.

Lachhman, No. 08-CV-4364, 2008 WL 5054198, at *6 (E.D.N.Y. Nov.

21, 2008) (quoting Hague Convention, art. 14).

The Supreme Court has held that the right of a parent

to consent before a child is removed from the country—so-called

ne exeat rights—is a right of custody for purposes of the Hague

Convention. Abbott, 560 U.S. at 10. Thus, an abducting

parent’s failure to comply with the terms of a travel

authorization pursuant to the habitual residence’s statutory ne

exeat rights has been found “wrongful” pursuant to the

Convention. In re R.V.B., 29 F. Supp. 3d 243, 254 (E.D.N.Y.

2014).

Petitioner notes, and the court agrees, that it is

undisputed that he held ne exeat rights over B.V. pursuant to

Ecuadorian law. (Pet. Prop. 17 (citing Tr. 210:20-211:7).) It

is also undisputed that respondent had traveled to the United

States on April 1, 2018, with B.V., pursuant to a court-ordered

travel authorization. (Stip. ¶ 37; Ex. 9, Travel Auth. 2.)

Pursuant to the court’s travel authorization, respondent was to

return B.V. to Ecuador by May 2, 2018, (Travel Auth. ¶¶ 3-6),

but failed to return the child on or before that date and has

since refused to return since leaving in April 2018. (Stip. ¶

42.) Petitioner’s claim is supported by a declaration by the

Ecuadorian Family Court authorizing respondent’s limited travel

with B.V., and stating that respondent’s “permit granted to

leave the country is now expired” and recognizing petitioner’s

right to “initiate the international recovery process” of B.V.

(Ex. 12, Ecuador Family Ct. Decl. 1.) Therefore, this court

concludes that respondent’s failure to return the child to

Ecuador by May 2, 2018, breached petitioner’s custodial rights

protected by the Hague Convention.

C. Custody Rights Exercised at Time of Removal

Finally, the petitioner must show that the petitioner

was exercising his or her custody rights at the time of the

child’s removal. Gitter, 396 F.3d at 130-31. “[T]he standard

for evaluating whether a petitioner is exercising custody at the

time of removal is fairly lenient.” Kosweski v. Michalowska,

No. 15-CV-928, 2015 WL 5999389, at *14 (E.D.N.Y. Oct. 14, 2015).

“A person cannot fail to exercise [his] custody rights under the

Hague Convention short of acts that constitute clear and

unequivocal abandonment of the child.” Souratgar v. Fair, No.

12-CV-7797, 2012 WL 6700214, at *4 (S.D.N.Y. Dec. 26, 2012),

(citing Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir.

1996)), aff’d sub nom. Souratgar v. Lee, 720 F.3d 96 (2d Cir.

2013). The court must “avoid[] the question whether the parent

exercised the custody rights well or badly” as “[t]hese matters

go to the merits of the custody dispute and are, therefore,

beyond the subject matter jurisdiction of the federal courts.”

Olguin v. Santana, No. 03-CV-6299, 2004 WL 1752444, at *5

(E.D.N.Y. Aug. 5, 2004) (quoting Friedrich, 78 F.3d at 1066).

The Supreme Court has noted that a “parent can exercise the ne

exeat right by declining consent to the exit or placing

conditions to ensure the [child’s] move will be in the child’s

best interests.” Abbott, 560 U.S. at 13.

As noted above, respondent does not dispute

petitioner’s prima facie case, or that Valles exercised his

custodial rights and took no actions evincing a “clear and

unequivocal abandonment” of B.V. at the time of his unlawful

retention in the United States. He usually saw B.V. on weekends

and holidays, had custody of B.V. around Christmas 2017, and saw

the child as recently as the month prior to his April 2018

departure from Ecuador. (Tr. 79:3-8; 84:12-25.) Respondent and

child both corroborated the father’s testimony to this point.

(Tr. 20:12-14, 180:10-181:20, 182:9-20.) The court finds that

petitioner exercised his custodial and ne exeat rights by

maintaining visits with B.V., and by first declining to consent

to B.V.’s travel and then by consenting to limited-duration

travel in 2018. Moreover, petitioner promptly responded to

B.V.’s unlawful retention by seeking a declaration from the

Ecuador Family Court which had authorized his travel. (See

Ecuador Family Ct. Decl.)

The court finds, therefore, that petitioner exercised

his custodial rights at the time of B.V.’s unlawful retention in

the United States and, furthermore, that he has met his burden

of establishing a prima facie case of wrongful retention of B.V.

by respondent. The court must order the child promptly

returned, unless respondent can carry her burden as to either of

the two defenses she asserts.

II. Respondent’s Asserted Exceptions

Respondent raises two defenses under the Hague

Convention. First, she argues that repatriation would expose

the child to a grave risk of harm given petitioner’s abuse of

the child and of herself. Second, she argues that the child has

attained an age and maturity such that his objections to return

should be taken into account. The court addresses the so-called

“child’s objection” defense first before turning to the “grave

risk” defense, as the former can provide support for a finding

of the latter. Blondin IV, 238 F.3d at 165. Furthermore,

though respondent does not and cannot, given that the required

statutory period has not lapsed, argue for application of the

Convention’s Article 12 defense, the court may also consider

whether the child is well-settled in his new environment under

an Article 13(b) defense. See Blondin IV, 238 F.3d at 164-65.

A. Article 13: “Child’s Objection” Exception

Respondent invokes Article 13’s unnumbered provision

as a defense, which is often termed the “age and maturity

defense,” the “mature child exception,” or the “child’s

objection defense.” See Haimdas, 720 F. Supp. 2d at 204.

Article 13 permits the court to “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 [the child’s] views.” Hague

Convention, art. 13. As noted above, and in contrast to the

grave risk exception, respondent bears the burden of proving

this exception by the lower standard of a preponderance of the

evidence. 22 U.S.C. § 9003(e)(2)(B). If the child is

sufficiently mature, the court may take his objection into

consideration in denying a petition. Blondin II, 238 F.3d at

166.

Though the child’s objection to repatriation “may be

conclusive,” the Convention only calls for the court to “take

account of” the mature child’s views, not to acquiesce.

Haimdas, 720 F. Supp. 2d at 204. When considering a child’s

objections, the Haimdas court emphasized its discretion in

granting a petition in the face of any proven exception because

of the “potential for undue influence” by the abducting parent,

whether or not the influence is calculated or intended. Id.;

see also Anderson v. Acree, 250 F. Supp. 2d 876, 884 (S.D. Ohio

2002) (taking nine year old’s opinion into account but

nevertheless finding it not conclusive when “his memories of

[his habitual residence] . . . are those of a six year old” and

where the child “ha[d] been in the virtually exclusive custody

of his mother in the United States since his removal,” and

because “his mother has articulated a desire not to return . . .

since almost the beginning of her arrival in [the United

States]”).

The court is not aware of any established objective

criteria or tests assessing a child’s maturity for purposes of

the Hague Convention. Id. at 205-06 (citing Anastacia M.

Greene, Seen and Not Heard? Children's Objections Under the

Hague Convention on International Child Abduction, 13 U. Miami

Int'l & Comp. L. Rev. 105, 132 (2005)). The Second Circuit,

however, has observed that the standard should be relatively

demanding. Blondin II, 238 F.3d at 166. Courts should also

distinguish “between a child’s ‘objection’ to return . . . ‘and

a child’s wishes as expressed in a custody case.’” Haimdas, 720

F. Supp. 2d at 205-06.

Given the lack of criteria, a review of cases may be

less helpful as they often turn on the impression a child left

on the court through her testimony, demeanor, and mannerisms.

Courts consider both the age of the child and the nature of

their objections to return. Though “[t]he Convention does not

establish a minimum age at which a child is old enough and

mature enough to trigger this provision,” Blondin IV, 238 F.3d

at 166, generally, courts more heavily weigh testimony from

children older than B.V. See, e.g., Matovski v. Matovski, No.

06-CV-4259, 2007 WL 2600862, at *14 (S.D.N.Y. Aug. 31, 2007)

(holding that 12 and 11 year old children sufficiently objected

to return where they testified that they had more family and

friends in the United States, enjoy a more stable life, and are

concerned about uncertainties that they would face in home

country); Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336, 343–44

(E.D.N.Y. 2004) (holding that 12- and 14-year-old children

sufficiently objected to return where they expressed preference

of staying with their mother and believed that they would have

better opportunities in this country); Laguna v. Avila, No. 07-

CV-5136, 2008 WL 1986253, at *11 (E.D.N.Y. May 7, 2008) (“The

Court was most impressed as [the child] testified calmly but

with deep feeling that he believes that the United States will

provide him personally with far better opportunities in life

than Colombia, because America ‘has more economy, more business,

more industry, more opportunities, things like that.’”); Broca

v. Giron, No. 11-CV-5818, 2013 WL 867276, at *10 (E.D.N.Y. Mar.

7, 2013) (finding 15-year-old child mature where she was aware

of her precarious immigration status and balanced risks and

rewards of her situation).

The greater weight accorded the wishes of children

older than twelve years of age is especially so where the child

demonstrates mature concerns and some recognition of the import

of their situation, and courts tend to discount objections that

are based more on a child’s fancy rather than concerns of the

future. See id. (honoring 15-year-old child’s “particularized,

mature objections to returning to [her home country]”); Haimdas,

720 F. Supp. 2d at 207 (finding child, nearly 10 years old, not

sufficiently mature in part because his objections were based on

an aversion to the United Kingdom’s weather, inferior athletic

opportunities, and lack of gym or science classes). Moreover,

courts give the child’s wishes less weight when they stem from a

preference for one parent over the other. See id. (describing

child’s objection as “an intensely favorable comparison” of life

with child’s abducting parent with the child’s recollection of

life with the petitioner parent, which had “clearly been

impacted” by respondent). The same is true when the child’s

objections amount to a “simple preference for the luxuries of

living in New York, not an objection to returning to” their home

country. In re Skrodzki, 642 F. Supp. 2d 108, 117-18 (E.D.N.Y.

2007) (discounting twelve-year-old child’s declaration which

listed aspects of New York life he enjoyed including the beach,

an amusement park, larger and less-crowded movie theaters, and

his school friends and cousins).

B.V. was nine years old during his in camera interview

with the court. He was clearly intelligent in his responses and

apparently aware of the nature of the proceedings. The child

also demonstrated an understanding of the difference between

what is true and what is not, and the importance of telling the

truth for the instant proceedings. He was in third grade at the

time of the hearing and may have had to repeat the grade. (Tr.

19:21-23.) Notably, B.V. testified in English occasionally,

although he was assisted by an interpreter. He unequivocally

does not want to return to Ecuador, and his testimony to that

effect is clear. His bases for not wishing to return are

varied. B.V. was first asked about visits with his father in

Ecuador and he stated their weekly visits diminished “because I

didn’t want to see him” because “he will call me names, . . .

hit me with a belt . . . and leave me with my sister, who would

lock me up inside the house.” (Tr. 21.) He first stated that

he did not want his father to take him to Ecuador because he

hated his half-brothers who mistreat him by locking him in the

house and make him “do everything for them.” (Tr. 44.) B.V.

further testified that during a court-ordered visit during the

show cause hearing his father told him he was going to take him

to Ecuador, and B.V. expressed that he did not want petitioner

to take him to Ecuador. (Tr. 43.) B.V. explained that “I also

hate my father” because “he beats me. He leaves me alone. He

also hates me.” (Tr. 44-45.) B.V. added that his father

“mistreats [him],” and repeated three times “he hates me,” and

concluded “I feel more pain,” and clarified that he feels anger.

(Tr. 45.) B.V. also expressed hate and dislike of his older

half-sister, Pocha, because she left him alone, and he believed

she hated him, but conceded they sometimes played together.

(Tr. 45-46.)

The child also appears to enjoy living in New York,

but for rather peculiar reasons. He testified life in New York

was good because there was less trash here than in Ecuador and

that in Ecuador there was more vehicular accidents because of

inoperable traffic lights. (Tr. 46-47.) When asked about his

family in Ecuador, B.V. testified that he felt his father’s

family is “bad,” his mother’s family is “good,” and that he

would feel “bad” and “a little nervous” at the prospect of

returning. That is, he felt anger towards his father, but also

nervous that his friends and family in Ecuador would not

remember him after his time away. (Tr. 47.) During this

testimony, B.V. asked when the interview would end and stated

that he wanted to be with his mother. (Tr. 45, 47.) B.V. also

testified that he has friends and attends church in New York.

(Tr. 48.) When asked most directly if he would “rather stay [in

New York] or go back to Ecuador” the child responded that he

preferred to be in New York “[w]ith my mom,” and did not want to

return to Ecuador or live with his father, stating again

“[b]ecause he mistreats me and abuses me.” (Tr. 49:1-11.)

Dr. Fernandez also concluded, based on his examination

of B.V., that he was sufficiently mature, and had expressed

specific reasons for not wanting to return to Ecuador. (Tr.

300:14-25.) The court finds B.V. is articulate and mature and

has sufficiently articulated compelling and credible reasons,

including physical and verbal abuse, for objecting to return to

Ecuador. The court will consider the child’s preferences and

reasons for remaining in New York but does not find them to be

conclusive. B.V. did not fear the prospect of returning, but

expressed strong hatred and nervousness about the past abuse,

and nervousness about seeing his family and friends in Ecuador.

His distaste for Ecuador’s trash and traffic are observations of

this child who has lived in both countries. The child also

noted that his mother’s family was good. Two aspects of the

child’s wishes stand out. First, his initial reason for wishing

to stay is that his half-brothers mistreat him. Although B.V.

did not specifically testify about instances of abuse by his

father abuses him, and his half-brothers, the court was mindful

of the child’s emotional discomfort in describing abuse by his

father, his father’s ex-wife, and his half-sister. Second, the

child’s preference to remain in New York with his mother instead

of returning to Ecuador with his father could reasonably be

expected as he has spent most of his life with his mother. Yet,

the court finds that B.V.’s preference repeatedly was explained

by B.V. in terms of the abuse by petitioner and B.V.’s strong

feelings of hatred and sense that his father hates him. A

return to Ecuador, however, would not necessarily result in

awarding custody to his father or that the child must decide

which parent he likes more. Thus, the court finds that

respondent has met her burden to establish that B.V. objects to

being returned and has attained an age and degree of maturity at

which it is appropriate to take account of his views, though not

at the exclusion of other considerations. The court will,

therefore, consider B.V.’s articulate views as it considers

respondent’s Article 13(b) exception below.

B. Article 13(b): “Grave Risk of Harm” Exception

1. Legal Standard

Respondent next invokes Article 13(b)’s grave risk

exception. Pursuant to Article 13(b) of the Hague Convention, a

court need not order the return of a child if “there is a grave

risk that his or her return would expose the child to physical

or psychological harm or otherwise place the child in an

intolerable situation.” Hague Convention, art. 13(b).

Respondent must establish this exception by clear and convincing

evidence. 22 U.S.C. § 9003(e)(2)(A). “Subsidiary facts[,

however,] may be proven by a preponderance of the evidence.”

Souratgar, 720 F.3d at 103 (citation omitted). Thus, “there may

be twenty facts, each proved by a preponderance of the evidence,

that in the aggregate create clear and convincing evidence.”

Danaipour v. McLarey, 183 F. Supp. 2d 311, 315 (D. Mass. 2002)

(“The district court held that subsidiary facts must be proved

by a preponderance of the evidence, a standard we accept.”),

rev’d on other grounds, 286 F.3d 1, 13 (1st Cir. 2002).

The Second Circuit has cautioned that the grave-risk

exception is a narrow one. Courts must carefully consider the

alleged risks arising from repatriation of the child:

[A]t 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 II, 238 F.3d at 162. “[T]he risk to the child [must be]

grave, not merely serious.” Legal Analysis: The Hague

Convention on the Civil Aspects of Int’l Child Abduction, 51

Fed. Reg. 10494, 10510 (1986).

Under Article 13(b), a grave risk of harm arises “in

cases of serious abuse or neglect, or extraordinary emotional

dependence, when the court in the country of habitual residence,

for whatever reason, may be incapable or unwilling to give the

child adequate protection.” Souratgar, 720 F.3d at 103 (citing

Blondin IV, 238 F.3d at 162). “The potential harm to the child

must be severe, and the ‘[t]he level of risk and danger required

to trigger this exception has consistently been held to be very

high.’” Id. at 104. Moreover, “[t]he grave risk involves not

only the magnitude of the potential harm but also the

probability that the harm will materialize.” Id. (citing Van De

Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005)). This

is all to say that the risk of harm must truly be grave. See

also In re Lozano, 809 F. Supp. 2d at 220. “The Second Circuit

has repeatedly emphasized that, to prevail on the ‘grave risk’

defense, there must be ‘evidence directly establishing the

existence of a grave risk that would expose the child to

physical or emotional harm or otherwise place the child in an

intolerable situation.’” In re D.T.J., 956 F. Supp. 2d at 543

(quoting In re Lozano, 809 F. Supp. 2d at 221).

It is important to note, however, that Article 13(b)

relief is not limited only to instances where repatriation poses

the threat of physical harm. See Souratgar, 720 F.3d at 104.

Rather, repatriation may also be inappropriate if it “pose[s] a

grave risk of causing unavoidable psychological harm to the

child.” Id. (citing Blondin IV, 238 F.3d at 160-61). Thus,

abuse directed at the respondent and witnessed by the child has

been found to present a grave risk of harm to the child. The

Second Circuit has recognized that “[m]any cases for relief

under the Convention arise from a backdrop of domestic strife.”

Souratgar, 720 F.3d at 103. However, as this exception is to be

interpreted narrowly, partner-respondent abuse “is only relevant

under Article 13(b) if it seriously endangers the child.” Id.

at 103-04.

In this vein, the Supreme Court has recognized that a

mother might demonstrate “grave risk” to “her own safety” and

thereby establish that “the child too would suffer

‘psychological harm’ or be placed ‘in an intolerable

situation.’” Abbott, 560 U.S. at 22 (citing Baran v. Beaty, 526

F.3d 1340, 1352–53 (11th Cir. 2008) and Walsh v. Walsh, 221 F.3d

204, 220–21 (1st Cir. 2000)). In Walsh, a First Circuit

decision cited by the Supreme Court as an example of spousal

abuse leading to a grave risk of harm to the child, there was

ample evidence of severe spousal abuse over an extended period

and a well-documented history of violence and disregard for the

law by petitioner. See Walsh, 221 F.3d at 209–12. The court

must therefore ask “not whether repatriation would place the

respondent parent’s safety at grave risk, but whether so doing

would subject the child to a grave risk of physical or

psychological harm.” Souratgar, 720 F.3d at 104.

In accordance with the foregoing guidance, courts have

closely considered the severity, and corresponding risks, of the

alleged spousal abuse in considering whether it presents a grave

risk of harm to the child. Repatriation is not appropriate

where “the petitioner showed a ‘sustained pattern of physical

abuse and/or a propensity for violent abuse’ that presented an

intolerably grave risk to the child.” Souratgar, 720 F.3d at

104 (quoting Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253,

at *8 (E.D.N.Y. May 7, 2008)); see also Elyashiv v. Elyashiv,

353 F. Supp. 2d 394, 408 (E.D.N.Y. 2005) (denying petition where

children had experienced physical abuse from father, had

witnessed his abuse of their mother, and expert testified that

their mere return to Israel would trigger their post-traumatic

stress disorders, as well as 14–year–old child's suicidal

ideations); cf. Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.

2000) (affirming district court decision that a husband's verbal

abuse and an incident of physical shoving directed at his wife

was insufficient to establish a grave risk of harm to the

child). Psychological abuse of the respondent alone, in the

form of shouting or other displays of uncontrolled anger in the

presence of the child, can support an Article 13(b) defense if

it is substantial and pervasive. Davies v. Davies, 717 F. App’x

43, 48-49 (2d Cir. 2017). The case law in this Circuit,

however, does not support the conclusion that “[s]poradic or

isolated incidents of physical discipline directed at the child,

or some limited incidents aimed at persons other than the child,

even if witnessed by the child,” constitute a grave risk.

Souratgar, 720 F.3d at 104.

Additionally, repatriation would not be appropriate if

it would unavoidably trigger recurrence of a child’s traumatic

stress disorder. Blondin IV, 238 F.3d at 160-61 (affirming

denial of petition to repatriate after an expert psychologist

opined that returning children to France, where they had been

abused by their father, would likely trigger recurrence of PTSD,

and that no arrangement could mitigate this risk); Reyes Olguin

v. Cruz Santana, No. 03-CV-6299, 2005 WL 67094 (E.D.N.Y. Jan.

13, 2005) (finding grave risk where return would trigger child’s

PTSD and where child testified to desire to kill himself with

father’s knife if returned).

Thus, after the Second Circuit’s decisions in the

Blondin cases, courts in this Circuit have denied repatriation

under the grave risk exception where the alleged abuse shocked

the conscience and was substantial. See, e.g., Elyashiv, 353 F.

Supp. 2d at 408-09 (finding grave risk where father beat the

children once or twice a week, threatened to kill his son and

wife with weapons he kept in the house and where children were

diagnosed with PTSD and expressed suicidal thoughts); Reyes

Olguin, 2005 WL 67094, at *10 (finding grave risk where history

of spousal abuse included beating respondent in attempt to cause

abortion, kicking pregnant respondent in stomach, pushing her

down stairs, and where expert testified “watching their mother

being abused was as traumatic [to the children] as being abused

themselves”); but see Broca, 2013 WL 867276, at *5 (finding no

grave risk exception where child testified to three occasions of

having been hit by petitioner, none requiring medical attention,

and “no evidence that the children . . . suffer[ed] from any

psychiatric infirmity brought about in part or in whole by

Petitioner's behavior, or that upon return to [home country]

same can be expected”).

For example, in Davies v. Davies, 717 F. App’x 43 (2d

Cir. 2017), the Second Circuit affirmed the district court’s

denial of a petition where ordering return would “expose [the

child] to a grave risk of psychological harm” based in part on

the petitioner’s psychological abuse of respondent over many

years and his “extreme violence and uncontrollable anger.”

Davies, 717 F. App’x at 48-49. The evidence in Davies of the

petitioner’s pattern of physical and psychological abuse, and

his propensity for violence, was overwhelming and disturbing.

The Second Circuit recounted the ample record supporting the

district court’s finding of grave risk stemming from

petitioner’s “pervasive, manipulative” verbal abuse of the

respondent all in the child’s presence. The petitioner in

Davies: smashed a glass door in anger, severely injuring himself

in the process, and as he was bleeding profusely he

simultaneously berated the respondent while toddler observed and

cried; in a shaking rage, the petitioner screamed at both the

respondent and the child and cornered them; splashed a glass of

wine in the respondent’s face; berated and towered over the

respondent; ripped the child out of the respondent’s arms;

pushed the child out of the room to berate the mother; threw the

child’s toys and other objects in anger; screamed profanities at

the child; and slammed on his car’s brakes to teach the child a

to wear a seatbelt. Id. at 47-48.

Before denying a petition under Article 13(b), the

court is first required to make findings regarding the existence

of “any ameliorative measures (by the parents and by the

authorities of the state having jurisdiction over the question

of custody) that can reduce whatever risk might otherwise be

associated with a child’s repatriation.” Blondin II, 189 F.3d

at 248; see also Saada, 930 F.3d at 542 (remanding for

reconsideration where undertakings found unenforceable and

without sufficient guarantees of performance). Respondent cites

to authority in the Sixth Circuit and First Circuit that assign

to petitioner the burden of establishing the “appropriateness

and efficacy of any proposed undertakings.” (Resp. Prop. 28

(citing Simcox v. Simcox, 511 F.3d 594, 611 (6th Cir. 2007) and

Danaipour, 286 F.3d at 21).) The Second Circuit, however, has

yet to explicitly assign this burden to either party. In

Blondin IV, however, the court described two situations giving

rise to a grave risk of harm, including “cases of serious abuse

. . . when the court in the country of habitual residence, for

whatever reason, may be incapable or unwilling to give the child

adequate protection.” Blondin IV, 238 F.3d at 162. This

phrasing would imply that to prove grave risk, the respondent

must also prove the incapability or unwillingness of the home

country courts to protect a child from abuse. In a more recent

decision, the Second Circuit held only that the district court

was required to make findings of such measures, without

assigning a burden of proof or production. Saada, 930 F.3d at

542. Logically, however, the burden would appear to fall to the

petitioner to establish ameliorative measures to defeat a grave

risk finding that would otherwise be fatal to the petition. In

any event, neither party has established that ameliorative

measures by the courts in Ecuador would be ineffective or that

the courts would be unwilling to adequately protect the child.

2. Application

The severity of the alleged physical and emotional

abuse by petitioner against respondent and B.V. falls short of

the nature and frequency of abuse discussed in Davies, Blondin,

Elyashiv, and the several other reported cases in this Circuit.

The Second Circuit has distinguished between abuse and sporadic

or isolated incidents of physical discipline, which appears to

be petitioner’s view of his use of a belt to hit B.V. The

evidence in the record, although disturbing, does not establish

a “sustained pattern of physical abuse,” nor does it demonstrate

petitioner’s “propensity for violent abuse,” whether directed at

the child or respondent. Indeed, even though the court credits

most of the child’s and Respondent’s testimony as to the

frequency and extent of petitioner’s alleged physical and verbal

abuse, which the court finds to be very concerning, respondent

has not carried her burden by clear and convincing evidence to

establish that the pervasiveness and severity of the abuse by

petitioner rose to the level of abuse and harm found to be

sufficient to deny return under the Second Circuit’s standards.19

19 Though the court heard testimony from Dr. Fernandez regarding the

child’s credibility, the court alone is empowered to make this determination.

Haimdas, 720 F. Supp. 2d at 207 (“[T]he credibility and weight of testimony

are questions to be decided exclusively by the [c]ourt.”) Dr. Fernandez

There is no evidence in the record that B.V. has been

diagnosed with post-traumatic stress disorder or that respondent

sought police or medical assistance. Furthermore, though the

court takes into account the child’s unequivocal preference to

remain with his mother rather than return to Ecuador, for

largely the same reasons discussed above, B.V.’s preference is

considered but not dispositive. Finally, as Dr. Fernandez

found, though the child is stable, functioning well, secure and

comfortable in the United States, the court finds that B.V. is

not so settled that returning him to Ecuador would expose the

child to a grave risk of harm based solely on the fact of return

and the disruption of his life in New York.

Nor is the court convinced that Ecuadorian courts

could not impose and enforce ameliorative measures to protect

B.V. Although, there is no evidence in the record that

respondent accused petitioner of hitting the child until after

the filing of the instant petition, the court does not question

the veracity of the testimony by respondent and B.V. regarding

petitioner’s abuse. See In re D.T.J., 956 F. Supp. 2d at 548

opined that, based on his training and experience, his review of voluminous

documents, and his interviews of B.V. and respondent, the child would be at

grave risk of psychological harm and physical harm were he to be returned to

Ecuador. (ECF No. 18, Fernandez Rept. 9.) As with credibility, this

ultimate determination lies with the court. And the court has previously

questioned “what a psychologist in a Hague Convention case could opine on,”

beyond mental or emotional pathology, “that is not already within the ken of

an ordinary finder of fact.” Haimdas, 720 F. Supp. 2d at 207.

(questioning veracity of sexual abuse claims never raised before

petition was served on respondent); see also In re Lozano, 809

F. Supp. 2d at 224 (noting lack of physical abuse allegations

which predated filing of petition). Instead, the record

demonstrates that Ecuadorian courts appear to have effective

procedures and resources to meaningfully address allegations of

child abuse. During the 2015 Ecuadorian Family Court proceeding

in which petitioner alleged respondent had hit B.V., respondent

did not raise any of the present abuse allegations in that

forum, despite her testimony in the instant proceeding that

petitioner hit the child with a belt around the time that B.V.

was three years old, or around 2013, that the child told her

immediately after this happened, and that she saw the boy with

two red marks on his buttocks. Further, the September 2015

report detailing a therapy session with respondent and

petitioner, indicates the father alleged abuse by the mother,

and the mother alleged that the father verbally disparaged the

child and disparaged respondent to the child, but did not allege

or reference physical abuse of the child by petitioner. (Ex.

AM, Psych. Eval. 1.) The Ecuadorian Family Court used

psychologists to examine the child and assist the court; the

court ultimately determined that respondent was innocent of

abuse and that petitioner had attempted to influence the child

against respondent. (See, e.g., Ex. AK, Aug. 20, 2015 Op. 4.)

The child’s in camera testimony during the instant

proceeding establishes at least one corroborated occasion where

the father hit him with a belt. The court understands from the

child’s testimony, that petitioner struck him with a belt four

separate times, as he testified to an additional time he was

tied-up and hit by his father, though this was apparently a

dream. See Haimdas, 720 F. Supp. 2d at 207 (“While the Court

does not find that [the child] was intentionally untruthful, the

only reasonable conclusion for the Court to draw is that some of

[his] experiences as a young child are distorted and inflated in

his memory.”). B.V.’s initial testimony, that petitioner hit

him four times with a belt and once with a stick, (Tr. 22-23),

was subsequently muddied by the child’s testimony that he was

hit with a belt “[t]he third time, once.” B.V. then clarified

that his initial testimony on this subject that petitioner

struck him four time with a belt by stating, “[a]ll of them,

with all of those [times] that I mentioned,” and when asked if

it was correct that petitioner hit B.V. all four times with a

belt, B.V. responded, “yes.” (Tr. 25:5-25.) Moreover,

respondent testified that she observed marks on B.V.’s buttocks

after a visit with his father. (Tr. 204:18-19.) Petitioner

further admitted hitting B.V. with a belt, but as observed by

Dr. Fernandez, the court finds that petitioner attempted to

qualify or minimize his acts by stating he hit B.V. with a cloth

belt from a girl’s dress because he would not eat choclo, a corn

dish. (Tr. 112:23-113:9.) The court credits B.V.’s testimony

that petitioner struck him four times with a belt, though one

instance appears to be a dream, and once with a stick. There is

good reason to discount one of the instances of abuse as B.V.’s

description of a vivid dream. Despite the child’s fervent

belief that he was not dreaming when his father tied him up with

two belts and hit him while he was sleeping, the court finds

that the description of the incident by B.V. appears to be a

dream.

At most, however, and crediting the child’s testimony

entirely, which was occasionally inconsistent, petitioner hit

B.V. with a belt four times and once with a stick. The mother

testified, over a hearsay objection, to three instances of abuse

by petitioner’s ex-wife, though the child testified petitioner’s

ex-wife struck him only once with a stick, the same stick his

father hit him with. The timing of the alleged abuse is also

uncertain, as neither mother nor child testified to the child’s

age when he was hit by petitioner. Only petitioner testified

that the child was either two or three when he hit the child

with a belt for refusing to eat choclo. The other instances of

abuse by petitioner that respondent and B.V. allege appear to

have occurred at any time between 2013 and 2018, before the two

left Ecuador.20 This uncertainty as to time, and the lack of a

precise recollection with the same details surrounding the one

corroborated instance, coupled with respondent’s abuse

allegations that have not been raised before an Ecuadorian

court, medical provider, or law enforcement, have been

considered by the court. Nonetheless, the court credits

respondent’s and B.V.’s allegations that petitioner struck B.V.

four times with a belt and once with a stick, verbally abused

B.V. and respondent, and physically struck respondent in the

presence of B.V.

It is also worth noting that the child appears to use

the verb “abusing” in a somewhat conclusory manner. That is,

while testifying about the loaded gun incident, the child stated

his father threatened “maybe I might fire at you. So he was

abusing me.” (Tr. 29:6-7.) The court asked the child for

clarification:

The Court: How was he abusing you?

A: He was abusing me about giving me (sic) the gun.

. . .

The court: What happened? How did your father abuse

you?

A: He said that he might – he said that he was going

to fire at me by accident. Let’s see if he fired one

shot at me.

20 Dr. Fernandez’s Report, (ECF No. 18, Fernandez Rept.), which was not

admitted into evidence, describes a single incident of physical abuse by

petitioner in 2017, though this incident, involving petitioner allegedly

tying up the child after he was at the beach with his half-brothers, was

consistent with the child’s testimony concerning a dream-like instance of

abuse.

(Tr. 29-30.) In this context, the child’s use of the word

“abuse” indicates that petitioner’s statement that “he was going

to fire” a loaded gun at B.V. “by accident” was reasonably

perceived as abuse by B.V. As “abuse” is a word most children

have minimal occasion to hear or use, B.V.’s frequent use of the

word may be a result of the translation or his mother’s use of

the word. Moreover, the child likely would have heard the term

or its equivalent in 2015 surrounding petitioner’s allegations

of abuse against respondent. In any event, although the court

is not bound by any witness’s characterization of an event as

abuse, whether a child, an adult, or an expert, the court

credits the child’s testimony that petitioner struck him with

belts and a stick, and called him demeaning names, which

explains B.V’s use of the word “abuse,” and placed a loaded

firearm in B.V.’s hands which B.V. discharged. The court notes

that B.V.’s school essay further supports B.V.’s testimony

regarding the abuse by petitioner and his family. (Tr. 49-50.)

Turning next to petitioner’s alleged physical and

psychological abuse toward respondent, these limited instances

do not rise to the level of physical or psychological abuse that

have supported denying a petition in previous cases within this

Circuit. First, respondent testified that petitioner used force

on respondent, when petitioner pushed respondent out of his

warehouse in front of B.V, when she went to ask petitioner for

money to buy food and clothing for the child, who was three or

four years old. (Tr. 176:17-25; 177:1-15); See In re Filipczak,

838 F. Supp. 2d 174, 180 (S.D.N.Y. 2011) (granting repatriation

petition even though the child had witnessed one incident of

spousal abuse as a two-year-old); Rial v. Rijo, No. 10-CV-1578,

2010 WL 1643995, at *2–3 (S.D.N.Y. Apr. 23, 2010) (ordering

return of child despite evidence that petitioner was verbally

and sometimes physically abusive to respondent). In addition,

B.V. testified that he saw his father strike his mother with his

hands one time, which made B.V. feel “bad.” (Tr. 24-25.)

Second, respondent lived away from petitioner in Ecuador after

the child was about one year old. There have been no

allegations of other physical abuse by petitioner against

respondent since about 2012. Cf. Davies, 717 F. App’x at 49

(finding no ameliorative measures where the petitioner

“escalat[ed] his threats toward [the respondent] even after

their separation”). Moreover, although some of the emotional

and verbal abuse directed at respondent predates B.V.’s birth,

and the parties separated around the time B.V. was one year old,

respondent testified that B.V. repeated the same abusive

language directed at respondent by petitioner after B.V.

returned from visits with petitioner. (Tr. 167:14-25, 168:1.)

B.V. testified that petitioner called him “queer,” “fag,” and

“shit,” which made him feel badly and that petitioner hated him.

(Tr. 20-22.) B.V. testified that his father sometimes directed

this language at others, sometimes at the child, and often when

he heard bad news of the child’s performance in school.

Furthermore, according to respondent, petitioner referred to

B.V. as a “shitty” child when she went to drop off B.V. with

petitioner after he refused to allow her to travel with B.V.

Respondent also testified that, during an earlier visit with

B.V. to the United States in 2016, B.V. did not want to return

to Ecuador because he did not want petitioner to keep insulting

respondent and yelling at them. (Tr. 213, 220.)

Thus, there is ample evidence that petitioner

routinely verbally abused respondent in the presence of the

child, and that the child had taken to repeating some of these

insults. The court in no way condones or minimizes the verbal

and emotional abuse respondent claims to have experienced during

her encounters with petitioner, and even after leaving his home.

Crediting all her testimony, however, convinces the court only

that respondent suffered occasional verbal and emotional abuse,

and one incident of physical abuse that did not require any

medical treatment, in the presence of the child, all which do

not rise to the level of physical or psychological abuse against

a parent as that presented in Davies. 717 F. App’x at 47-49.

Respondent established through the testimony of Dr. Fernandez

that the child’s exposure to and resulting use of insulting and

abusive language demonstrated that B.V. has been psychologically

affected by petitioner’s verbal abuse and insults.

Respondent next supports her Article 13(b) defense by

testifying that B.V. told her that petitioner left the child

with his daughter, Pocha, and his ex-wife who would in turn

leave the child alone, including overnight, and physically hurt

B.V. (Tr. 201.) It is undisputed that the child had a serious

fear of being left alone, as the father testified. Dr.

Fernandez further explained that this type of fear is due to the

child not having a secure attachment to petitioner. (Tr. 317-

18.) Respondent presented evidence of a text message from B.V.

to his sister Pocha demonstrating that she had left the child

alone sometime in October 2017 around 10 a.m. The child also

testified to being left alone by Pocha once, but did not specify

that it was overnight. Petitioner denied he or Pocha would ever

leave the child alone, day or night, especially given that

petitioner and his daughter live close together and she could

have brought B.V. back to petitioner’s home. Petitioner,

however, left B.V. in the care of his daughter, Pocha, if he

stayed in Guayaquil where his business was located. (Tr. 201:6-

10.) Respondent testified, over petitioner’s objection, that

B.V. told her Pocha left him alone at night on four occasions,

and that the child would “get up in the middle of the night

looking around the house” and find no one there, including

Pocha’s children. (Tr. 205-06.) When respondent called

petitioner about the situation, petitioner did not deny he had

left B.V. in Pasaje and had returned to Guayaquil, and told her

not to get involved and that he had to return to Guayaquil to

work, so left B.V. in Pasaje. (Tr. 201.)

The father’s testimony is clearly contradicted, and

respondent and B.V.’s testimony supported by the texts between

B.V. and Pocha. Respondent’s testimony regarding what B.V. told

her is hearsay and cannot be considered for the truth. On the

other hand, when respondent called petitioner to express her

objection to having B.V. with Pocha, he did not deny that he had

done so, and instead told respondent it was not her problem and

that he was very busy and did not want respondent to call him.

(Tr. 208.) Moreover, the child’s testimony that he was left

alone once, (Tr. 26:12), is corroborated by the morning text

messages. Thus, although the preponderance of the credible

evidence does not establish that the child was left alone by

Pocha overnight, this court finds respondent’s testimony

credible that she was concerned by her son’s accounts of being

left alone by Pocha and Cuenca, and called petitioner multiple

times with her concerns, but was told by petitioner that he was

busy and his actions were not her concern. Certainly, it was

neglectful and irresponsible for Pocha to leave B.V. alone,

though the court cannot conclude her behavior constitutes a

pattern of abuse or neglect by petitioner for leaving B.V. in

her care. Given B.V.’s fear of being left alone, however, he is

at risk of further psychological harm to B.V. should he be

repatriated and left alone.

Respondent also argues, and the court agrees, that the

child’s access to guns, including being handed a loaded firearm

by his father, supports a finding of grave risk in this case.

Though the father is in the licit trade of firearms, the

presence of guns within petitioner’s vehicle and home is at

least concerning to the court and certainly militates in favor

of finding grave risk of harm to the child. There is credible

evidence that petitioner transported weapons hidden in his

vehicle while also transporting B.V., that he one time sold or

gave a gun to someone at his home while the child was nearby,

and that he occasionally used the child as some form of “cover”

while transporting weapons in his vehicle. Moreover, there is

credible evidence that B.V. had unsupervised access to guns

within petitioner’s home, and that petitioner handed B.V. a

loaded gun that B.V. accidently fired and damaged petitioner’s

computer. Of particular concern is B.V.’s testimony that after

petitioner handed a loaded weapon to him, B.V. described as

“abuse” petitioner’s statement that “he was going to fire at

[B.V.] by accident,” that B.V. was scared, and that B.V. then

fired the weapon which damaged his father’s computer. (Tr. 27-

31.) The child’s testimony as to this incident and his sense of

fear was credible and petitioner’s denial, his testimony

regarding a toy gun, and his inability to explain what happened

to his computer when respondent called him about the incident

were not credible. Although the child had an apparent affinity

for video games that involve firearms, his testimony regarding

observing firearms in specific locations within petitioner’s

home was credible and corroborated by respondent’s observations

regarding the presence and locations of firearms when she lived

with petitioner. (See, e.g., Tr. 34:15 (“Q. How did you know

what [the silencer] was? A. In a game Fortnite.”).)

For his part, petitioner denied keeping loaded weapons

in his home, denied that he transported weapons in his vehicle-

he instead testified a gun found under the seat by police was

his grandson’s toy gun—and clarified that leaving a child with a

weapon would be irresponsible, though not, in his view, abuse.

He also denied the child fired an actual firearm, and instead

fired a toy gun. The court does not find petitioner’s foregoing

testimony credible. Respondent testified that B.V. had no toy

guns and that petitioner did not keep toy guns at his office,

though it was unclear when she had last been to petitioner’s

office. B.V. also denied that the weapons that petitioner

concealed in his truck and the weapon B.V. fired at petitioner’s

warehouse were toy guns.

Courts in this Circuit have dealt with Hague

Convention cases that have involved firearms and, as in the

instant case, have also included allegations of threats with the

gun to the respondent or child. See Rodriguez v. Rodriguez, 33

F. Su

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