Child abduction

• Author: International Law Group
• Pages: 43-

Page 43

Avans (respondent) is a naturalized U.S. citizen. In 1998, she met Adan (petitioner), a citizen of Argentina, in Argentina, and they began cohabitating shortly thereafter. Respondent testified before the District Court that petitioner began to abuse her almost immediately. For example, he would lock her in his bedroom, beat her, and threaten her with further harm if she ever leaves him. When respondent became pregnant in 1999, she moved to New Jersey. Petitioner followed her in a month and, according to respondent, the abuse resumed. Respondent gave birth to Arianna on June 15, 2000. The parents went on living in NewPage 44 Jersey where respondent filed reports of petitioner's abuse with the New Jersey police twice in a two-months span.

In September 2000, the parties returned to Argentina and, after receiving more abuse, respondent eventually began living apart from petitioner. At some point, the parties allegedly reached an informal custody agreement as to Arianna. Respondent next alleges that petitioner began sexually abusing Arianna in 2003. The child allegedly told her mother that petitioner took baths with her and that he apparently had put his tongue inside her mouth. Respondent also said that the child described having been sodomized by petitioner. In addition, respondent claimed that petitioner had raped respondent in front of Arianna.

After these incidents, respondent went to a family court in Argentina and secured a 90-day temporary restraining order (TRO) against petitioner. According to respondent, when petitioner violated the order, the local police failed to enforce it. Shortly before the February 2004 return date on the TRO, respondent took her daughter back to New Jersey. Petitioner followed his wife and child to the U. S. In April 2004, respondent obtained a TRO against petitioner from the local court.

Next, petitioner applied to the New Jersey federal court to order Arianna's return to Argentina pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") [Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980)]. The International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. implements the Hague Convention in the U. S. The court granted the application. It found that respondent had not shown by clear and convincing evidence that Arianna would be subject to physical or psychological harm if returned to Argentina.

With respect to the...