# Valles Rubio v. Veintimilla Castro

> District Court, E.D. New York · October 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10303262

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303262

## How later opinions describe it (automated extraction)

- 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
- noting no single factor, “including immigration status, is dispositive”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
SEGUNDO MELCHOR VALLES RUBIO,

Petitioner,
MEMORANDUM & ORDER
-against-
19-CV-2524(KAM)(ST)
OLGA KATERINE VEINTIMILLA CASTRO,

Respondent.

---------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303262. Public record. Not legal advice.