Souratgar v. Fair

818 F.3d 72, 2016 WL 1168733
Court of Appeals for the Second Circuit·Decided March 25, 2016·No. 14-904·Published·Cited by 23 cases

Opinions

KATZMANN, Chief Judge:

The International Child Abduction Remedies Act (“ICARA”) provides that the prevailing petitioner in a child abduction case shall be awarded expenses incurred in connection with the petition “unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). That determination requires district courts to weigh relevant equitable factors, including intimate partner violence.

Respondent-appellant Lee Jen Fair (“Lee”) appeals from a February 27, 20Í4 judgment following a February 20, 2014 order of the United States District Court for the Southern District of New York (Castel, J.), which awarded $283,066.62 in expenses to Petitioner-Appellee Abdollah Naghash Souratgar (“Souratgar”). Previously, Souratgar had petitioned for the return of Shayan, the son whose.custody he and Lee shared in- Singapore, under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986), and its domestic implementing ' legislation, ICARA, 22 U.S.C. §§ 9001-9011.1 The district court granted that petition, and a panel of our Court affirmed. See Souratgar v. Fair (Souratgar I), No. 12-cv-7797, 2012 WL 6700214 (S.D.N.Y. Dec. 26, 2012), aff'd sub nom., Souratgar v. Lee (Souratgar II), 720 F.3d 96 (2d Cir.2013). Souratgar then sought an order directing Lee to pay the “necessary expenses”.related to his successful petition pursuant to 22 U.S.C. § 9007(b)(3). Notwithstanding •Lee’s arguments that her indigence and SouratgarV acts of violence against her rendered the requested award clearly inappropriate, the district court ordered Lee to pay Souratgar $283,066.62. See Souratgar v. Lee (Souratgar III), No, 12-cv 7797, 2014 WL 704037, at *9-12 (S.D.N.Y. Feb; 20, 2014).

In resolving whether it was clearly inappropriate to order Lee to pay expenses to Souratgar, our consideration is grounded in the record, which reveals that Souratgar committed intimate partner violence against Lee but Lee did not commit any violence against Souratgar. The district court was correct in considering this uni[75] lateral intimate partner violence as a relevant equitable factor, but, after reviewing the record, we find that the district court erred in its assessment of the relationship between the intimate partner violence and Lee’s decision to remove Shayan from the country of habitual residence and thus erred in its weighing of the equitable factors. Because Lee established that Sou-ratgar had committed multiple, unilateral acts of intimate partner, violence against her, and that her removal of the child from the habitual country was related to that violence, an award of expenses to Sourat-gar, given the absence of countervailing equitable factors, is clearly inappropriate. Accordingly, we REVERSE the order and VACATE the judgment.

BACKGROUND

Lee, a Malaysian national, and Sourat-gar, an Iranian national, married in 2007 and resided in Singapore. In 2008, Lee became pregnant, which is when, on her account, Squratgar began abusing her. Lee gave birth to their, son, Shayan, in January 2009. After several years of marital discord, Lee eventually departed the marital home with Shayan in May 2011 and left Singapore with Shayan one year later.

After Lee departed Singapore, Souratgar filed a petition in the Southern District of New York seeking the return of Shayan to Singapore as provided by the Hague Convention and ICARA. In considering the petition, the district court conducted a nine-day evidentiary hearing at which both Lee and Souratgar testified.' The district court ultimately granted the petition after concluding that Souratgar had established a prima facie case under the Hague Convention and that Lee had failed to prove-either of her two asserted affirmative defenses. See Souratgar I, 2012 WL 6700214, at *4-17. Lee appealed, and a panel of this Court affirmed the judgment. Souratgar II, 720 F.3d at 100.

'Souratgar then moved in the district court for an order directing Lee to pay his expenses related to Shayan’s' return to Singapore. ICARA provides that, if the petitioner succeeds, a district court “shall order the respondent to pay necessary expenses incurred, by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). The district court, in a finding not challenged by Souratgar, determined that only $283,066.62 of his requested $618,059.61 constituted necessary expenses related to the return of Shayan. See Souratgar III, 2014 WL 704037, at *2-8, *12. Lee argued that an order directing her to pay Souratgar’s expenses would be clearly inappropriate for two reasons: (1) “Souratgar’s past abusive behavior” against Lee and (2) Lee’s “inability to pay.” Id. at *9. The district court determined that neither argument was persuasive.

As to Lee’s first argument, .the district court acknowledged that it had, in considering the merits of Souratgar’s petition for the return of Shayan, made detailed factual findings “that Souratgar. engaged in abusive conduct” against Lee. Yd The district court made those findings in the course of evaluating Lee’s affirmative defense under Article 13(b) of the Hague Convention. Under that provision, a signatory-state need not order the return of the child if the respondent establishes that “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.” [76] Hague Convention art. 13(b), - 1343 U.N.T.S. at 101.

Lee had argued that Article 13(b) should apply because, if returned to Singapore, Shayan would face a grave risk of physical and psychological harm due to Souratgar’s violence. The district court ultimately disagreed, finding no risk of physical harm to Shayan because “there is no credible evidence that petitioner physically abused the child,” Souratgar I, 2012 WL 6700214, at *11. The district court also found psychological harm unlikely because Souratgar and Lee would probably nevér live together again, diminishing the prospect that Shayan would “bear witness to petitioner’s abuse of respondent.” Id. The district court further found that there was no evidence that Shayan “himself suffers from, [post-traumatic stress disorder]' or will have a negative reaction to being repatriated to Singapore” and “that Singapore is well-equipped to mitigate any risk of harm to the child pending a final custody determination.” Id.

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Souratgar v. Fair, 818 F.3d 72, 2016 WL 1168733 (2d Cir. 2016).

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