A Maryland federal court says that even though an abducting mother had recently gotten temporary custody in a pending case in Peru, the father had custody rights and was exercising them. After the father kept the children after a visitation, the mother had gotten an order from a criminal court, ordering the father to stop preventing the mother from exercising her parental authority; she also filed a custody case and got a temporary order preserving the status quo, after getting the children back from the father. She then left Peru for the U.S. In the Hague case, she argued that the Peruvian court orders extinguished the father's rights of custody, and that he was not exercising custody rights.
That may not have reflected Peruvian law, though, because after she left, the father went back to court and got custody. The U.S. court said that the father had had custody rights at the time of the abduction, as the status-quo order "only effectively granted her temporary custody and that it was not a final determination of parental authority. The father furthermore had the right to require the mother to secure his consent to their children's removal under Peruvian law, which was an additional basis for his custody rights under the Convention."
But the U.S. court found grave risk of harm:
The Court noted that there was little evidence of physical abuse of the mother or children, but that the level of psychological abuse went "beyond what is typically seen in grave risk cases". It was signifcant that the father's verbal abuse of the mother had often been directed against the children, and that they had frequently been forced to verbally abuse and make sexually explicit insults against her.
The Court highlighted that the father had frequently threatened to kill the mother, noting that threats to kill a spouse, child or third parties are significant factors when making a grave risk determination. The risk, on the facts, was compounded by the credibility of the father's threats (including his ownership of a gun), his history of psychological problems and substance abuse, and the fact that he regularly told the children of his plans to kill their mother. The father had also threatened to kill the children "if things go wrong".
It was noted that both children had been diagnosed with separation anxiety disorder, and that one of them had and the other was likely to have post traumatic stress disorder and presistent depressive disorder. Taking all the facts together, the Court concluded that the magnitude of the psychological abuse in the case was unique, despite there being little to no evidence of physical abuse.
However, this would NOT pose a grave risk if the children would be with the mother when returned to Peru. So the court ordered return, but only "if the father were to arrange for the criminal charges or investigation against the mother dismissed or closed, and to have the temporary custody order in his favour vacated (in order for the underlying temporary custody order in favour of the mother to effectively be reinstated)."
Sabogal v. Velarde, 106 F.Supp.3d 689 (2015)
From synopsis on Incadat database
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