United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Petitioner Fernando Silva de Souza ("de Souza" or "Petitioner") seeks an order from this Court for the return of his five-year-old son (herein referred to as "G.N.S.") to Brazil pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 22514 U.N.T.S. 89 (the "Hague Convention" or "Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001 et seq. (formerly 42 U.S.C. § 11601). Respondents Fania Luiza Negri ("Negri"), G.N.S.'s mother, and Jorge Nobre Sinoura ("Sinoura"), Negri's husband (collectively, "Respondents"), oppose de Souza's petition and G.N.S.'s return to Brazil under Articles 13 and 20 of the Convention. Upon consideration of the evidence admitted at a two-day hearing and the parties' post-hearing submissions, the Court GRANTS the petition for return.
II. Procedural Background
On October 7, 2014, de Souza filed an emergency petition in this Court for the return of his five-year-old son, G.N.S., to Brazil pursuant to the Hague Convention. D. 1. As relief, de Souza sought, among other things, "an Order directing the prompt return of GNS to his habitual residence of Brazil." Id. at 9. On October 31, 2014, Negri and Sinoura filed their answers, D. 23, 24, and Negri moved to stay the proceedings for a period of six months pending resolution of an asylum application Negri filed on behalf of G.N.S. on October 13, 2014. D. 25 at 11. The Court denied Negri's motion to stay on November 12, 2014. D. 29. Between November 14, 2014 and November 24, 2014, the Court conducted a two-day hearing on de Souza's petition where Respondents raised two defenses under Articles 13 and 20 of the Convention: (1) that there is a grave risk of physical or psychological harm to G.N.S. in the event that he is returned to Brazil; and (2) that returning G.N.S. to Brazil violates the fundamental principles of the United States with respect to the protection of human rights and fundamental freedoms. D. 30, 36.
III. Findings of Fact
At the hearing, the Court heard testimony from de Souza, Neuza Odete Andre da Silva (de Souza's aunt) and the Respondents, Negri and Sinoura. The Court also admitted numerous exhibits in evidence, including affidavits from one of G.N.S's teachers, Vandreia Pimenta, Exh. 5, a health care worker, Maria Helena Nicoletti, who supervised the health of G.N.S. during monthly visits, Exh. 6, and Claudecir Tuni, a neighbor of de Souza's, Exh. 7. In light of the evidence presented to the Court, the Court makes the following findings of fact:
G.N.S. is the son of de Souza and Negri. D. 1 at 1. De Souza and Negri met in guia Branca, Brazil, approximately seven years ago. Transcript of November 24, 2014, Day 2, Hearing ("11/24 T.") at 3. They never married, but lived together and were in a relationship when G.N.S. was born in Brazil on January 20, 2009. Exh. 3 (birth certificate); Transcript of November 14, 2014, Day 1, Hearing ("11/14 T.") at 29; 11/24 T. at 4. According to de Souza, de Souza and Negri separated when G.N.S. was nine months old. 11/14 T. at 28.
Negri testified that when the couple "really separated, " G.N.S. was two years old. 11/24 T. at 11. Negri testified that de Souza struck her when she was three months pregnant with G.N.S. and, from that point forward during their relationship, he was abusive toward her. 11/24 T. at 4-6. Negri also claims that when G.N.S. was around three years old, she left the child in de Souza's care while she went to the pharmacy and that when she returned she noticed bumps and bruises on G.N.S.'s legs. Id. at 9. When she inquired about what happened, Negri claims that de Souza told her that it was her responsibility to take care of the child, not his, because he had no patience. Id . Negri also claims that de Souza became more aggressive toward her and that she called the police on one occasion. Id. at 10. According to her account, after the police returned de Souza to his house, a short time later he returned and assaulted her. Id. at 10-11. Negri also claims that the child, G.N.S., observed de Souza assaulting her. Id. at 11. Although she never filed for a protective order from de Souza in Brazil, id. at 14-15, in October 2014 she sought asylum here, see D. 25 at 11, on the basis of this abuse. 11/24 T. at 15-16.
Although there were never any proceeding regarding custody of G.N.S. when they separated, 11/14 T. at 29, at some point later, around the time that G.N.S. was four years old, Negri filed suit to get child support and de Souza was ordered to pay child support. Id. at 41; 11/24 T. at 13.
De Souza still lives in guia Branca. 11/14 T. at 30-31. Negri lived in the same city, but in another district on the other side of the city. 11/14 T. at 40. Although the exact contours of de Souza's and Negri's respective visitation of G.N.S. remains somewhat unclear, both parents, including de Souza, were playing a role in his care and upbringing. Compare 11/14 T. at 26-27 (de Souza describing that G.N.S. lived with him primarily from 9 months old until Negri took him to the United States, approximately for four years time) with 11/14 T. at 27-28 (de Souza describing that Negri sometimes took G.N.S. on weekends and would "take him occasionally") and 11/14 T. at 55 (de Souza's aunt testifying that Negri would visit G.N.S. "sometimes once a week"); 11/24 T. at 14 (Negri testifying that G.N.S. lived with her since birth). While at de Souza's, G.N.S. lived with his father, his father's parents and two sisters. 11/14 T. at 26. While de Souza was working, de Souza's mother would take care of him and G.N.S. would be in the care of de Souza's aunt after school. Id. at 27, 49. De Souza denied hitting G.N.S. or ever physically disciplining the child. Id. at 27, 41. De Souza's aunt, who helped care for G.N.S., never observed any abuse or violence by de Souza. Id. at 52.
De Souza never gave Negri permission to remove G.N.S. from Brazil, 11/14 T. at 25, or to remove him under another name. 11/14 T. at 20-21. On or about December 11, 2013, Negri took G.N.S. afterschool one day and first went to another part of Brazil, Curitiba. 11/14 T. at 23-24, 34, 48, 52. Negri told de Souza's aunt, who would watch G.N.S. in the afternoons, that she would bring the child back within two hours, but she did not. Id. at 56. Although Negri later indicated that she intended to stay in Curitiba on a vacation with G.N.S., she had not communicated such intention to de Souza prior to their departure. Id. at 34-35, 42. Upon this discovery, de Souza contacted Child Services to find Negri and G.N.S. Id. at 23-24. When Child Services located her, Negri indicated that she would return to guia Branca, but then never did so. Id . Negri's return was expected on January 24, 2014, but she did not return, and instead travelled to the United States. Id. at 24-25. De Souza never gave Negri permission to travel with G.N.S. to the United States or, once here, to remain here. Id. at 25. Once in the United States, de Souza had limited contact with G.N.S., having spoken to him only two or three times since his arrival here. Id. at 25.
IV. Conclusions of Law
In light of the findings of fact enumerated above, the Court makes the ...