12

- 5088

Souratgar v. Fair

UNITED STATES COURT OF APPEALS 

### 1

FOR THE SECOND CIRCUIT 

### 2
August Term 2012 

### 3
(Argued: March 13 , 201 3 Decided: June 1 3 , 2013) 

### 4

Docket No. 1 2

- 5088 

### 5

---------------------------------------- x 

### 6

ABDOLLAH NAGHASH SOURATGAR , 

### 7

Petitioner

- Appel l ee , 

### 8

-- v. -- 

### 9

LEE JEN FAIR , 

### 10
Respondent

- Appellant

. 

### 11

----------------------------------------- x 

### 12

B e f o r e : WALKER, WESLEY and DRONEY, Circuit Judge s . 

### 13 14 After Lee Jen Fair removed her child from Singapore to New 

### 15

York State in violation of a Singapore court order , Abdollah 

### 16

Nag h ash So uratgar, the child’s father and Lee’s husband , filed a 

### 17
petition under the Hague Convention on the Civil Aspects of 

### 18

In ternational Child Abduction for repatriation of the child to 

### 19
Singapore. The United States District Court for the Southern 

### 20

District of New York (Castel, J. ) granted the petition. AFFIRMED

. 

### 21

22 ROBERT D. ARENSTEIN , Law Offices of 

### 23 Robert D. Arenstein , New York, NY 

### 24 for Petitioner

- Appellee

. 

### 25 26 RANDY M. MASTRO and Jane Kim, 

### 27 Gibson, Dunn & Crutcher LLP, New 

### 28 York, NY and D orchen A

. L eidholdt , 

### 29 Center for Battered Women ’ s Legal 

### 30 Services , Sanctuary for Families, 

### 31 New York, NY for Respondent



### 32 Appellant. 

### 33 342 JENNIFER BAUM, St. Vincent de Paul 

### 1 Legal Program, Inc., Child Advocacy 

### 2 Clinic, St. John ’ s University School 

### 3 of Law, Jamaica, NY (Jenna M. 

### 4 DiCostanzo and Jenni fer R. Kwapisz, 

### 5 St. John ’ s University School of Law 

### 6

on the brief ) for Amicus Curiae 

### 7 Guardian ad Litem

. 

### 8 9 William C . Silverman , Greenberg 

### 10 Traurig, LLP, New York, NY for Amici 

### 11 Curiae Tahirih Justice Center, Asian 

### 12 Pacific American Legal Center, 

### 13 Ayuda, Battere d Women ’ s Justice 

### 14 Project, T he Central American 

### 15 Resource Center, Greater Boston 

### 16 Legal Services, Immigration & Asylum 

### 17 Clinic of Boston College Law School, 

### 18 Immigration Justice Clinic, John Jay 

### 19 Legal Services, Inc., Inmotion, 

### 20 Inc., Kentucky Coalition for 

### 21 Immi grant and Refugee Rights, Legal 

### 22 Services NYC, National Immigrant 

### 23 Women ’ s Advocacy Project, New York 

### 24 Asian Women ’ s Center, Inc., 

### 25 Philadelphia Legal Assistance, 

### 26 Sexuality & Gender Law Clinic , and 

### 27 Columbia Law School. 

### 28 29 Joel Kurtzberg, Mary Mc C ann , and 

### 30 Etienne Barg

- Townsend , Cahill Gordon 

### 31 & Reindel LLP, New Yo rk, NY and Lynn 

### 32 Hecht Schafran and Elizabeth Grayer , 

### 33 Legal Momentum, New York, NY for 

### 34 Amici Curiae Legal Momentum, 

### 35 Domestic Violence Legal Empowerment 

### 36 Appeals Project, End Violence 

### 37 Against Women Internatio nal, Iowa 

### 38 Coalition Against Sexual Assault, 

### 39 National Coalition Against Domestic 

### 40 Violence, National Network T o End 

### 41 Domestic Violence, New Mexico 

### 42 Coalition of Sexual Assault 

### 43 Programs, Inc., the Pennsylvania 

### 44 Coalition Against Rape , and the 

### 45 Victim Rights Law C enter. 

### 46 473 Michael R. Lazerwitz, L ewis J . Liman 

### 1 and Kiesha Minyard , Cleary Gottlieb 

### 2 Steen & Hamilton LLP, New York, NY 

### 3 (William F. Gorin, Abigail Fee and 

### 4 Shira A. Kaufman, Cleary Gottlieb 

### 5 Steen & Hamilton LLP, on the brief ) 

### 6 for Amici Curiae Dean Jeffrey L. 

### 7 Ed le son, Ph.D., Professor Evan 

### 8 Stark, Ph.D., Professor Michelle 

### 9 Madden Dempsey, Ph.D., Dr. Stephanie 

### 10 Brandt, The Child Advocacy Clinic at 

### 11 Columbia Law School, The University 

### 12 of Baltimore Family Law Clinic , and 

### 13 the University of Oregon Domestic 

### 14 Violence Clini c. 

### 15 16 17 18 JOHN M. WALKER, JR., Circuit Judge : 

### 19

Lee Jen Fair appeals the grant of a petition brought by her 

### 20
husband Abdollah Naghash Souratgar for repatriation of their son 

### 21
from New York to Singapore. In May 2012, Lee removed the boy to 

### 22

Du t chess County, New Yo rk, in direct violation of a Singapore court 

### 23

order. The United States District Court for the Southern District 

### 24

of New York (Castel, J udge ) granted Souratgar’s petition pursuant 

### 25

to the Hague Convention on the Civil Aspects of International Child 

### 26

Abduction (“ Convention ” ) , Oct. 25, 1980, T.I.A.S . No. 11,670, 1343 

### 27

U.N.T.S. 89 , and its implementing statute, the International Child 

### 28

Abduction Remedies Act, 42 U.S.C. §§ 11601

- 10. Souratgar v. Lee 

### 29

Jen Fair , No. 12 CV 7797 (PKC), 2012 WL 6700214 ( S.D.N.Y. Dec. 26, 

### 30

2012)

. 

### 31

324

The principal issue on appeal is whether Lee’s affirmative 

### 1

defenses to repatriation should have prevailed in the district 

### 2

court. We find the district court correctly applied the C onvention 

### 3

and affirm its order of repatriation

. 

### 4

I. Background 

### 5

The boy at the center of this case, now four

- year - old Shayan, 

### 6
was born in Singapore in January 2009 to Lee and Souratgar , who are 

### 7
both residents of that country. Souratgar is an Iranian national 

### 8

who has owned a business in Singapore since 1989

. Lee is a 

### 9
Malaysia n national who worked as an airline attendant, saleswoman , 

### 10
and retail manager in Singapore

. She converted to Islam, 

### 11
Souratgar’s faith, just prior to their marriage in Singapore in 

### 12

2007. Shayan is a citizen of Malaysia with Malaysian and Iranian 

### 13

passports

. 

### 14

T he parties ’ marital relationship has been stormy. At the 

### 15
district court hearing, they traded accusations and denials of 

### 16

domestic abuse. Souratgar accused Lee , among other things, of 

### 17
biting him, repeatedly threatening him with a knife and chopper, 

### 18

hav ing suicidal tendencies , and inflicting injuries on herself. 

### 19

Lee asserted in her testimony more serious allegations

– that 

### 20

Souratgar repeatedly slapped, beat, shook, and kicked her, and that 

### 21

he forced her to per form sex acts against her will. T he distric t 

### 22

court carefully checked these assertions against the various police 

### 23
reports, medical records , and legal papers entered into evidence 

### 245

and, while it could not verify the most severe claims of abuse and 

### 1

found both parties ’ testimony to be incredible in cert ain 

### 2

instances, it did credit the accounts it could corroborate

. 1 T he 

### 3

district court found spousal abuse by Souratgar , including 

### 4

“ shouting and offensive name

- calling , ” and several incidents of 

### 5
physical abuse in which he “ kicked, slapped, grabbed , and hit ” Lee

. 2 

### 6

Souratgar , 2012 WL 6 700214, at *11. 

### 7

The district court found no credible evidence of any harm 

### 8
directed against the child. B oth parties, despite their 

### 9

acrimonious contest over his custody, acknowledge the other ’ s love 

### 10

for Shayan, and it is not dispu ted that the boy dearly loves both 

### 11

of his parents. 

### 12

1 The district court’s findings as to the charges and counter

charges of domestic abuse by the parties are set forth in the district court’s opinion. See Souratgar , 2012 WL 6700214, at *7

- 10,

* 11, * 12 & * 13. 2 The district court declined to credit Lee ’ s charge that Souratgar compelled her to engage in certain sexual acts, noting that text messages she sent him ind icated her willing participation. The text messages, however, were sent well before the acts had allegedly occurred, and it is of course possible for express or implied consent to sex to be withdrawn after it is given. Even if the text messages were sent close to (or even after) the alleged acts, that would not in itself indicate that Lee
was a “ willing participant ” or ipso facto invalidate her testimony that she was forced to engage in sexual activity. The district court was entitled to make its own det ermination regarding the credibility of Lee ’ s testimony, and nothing in the record indicates that its finding was erroneous. Any suggestion that a woman who indicates enthusiasm for a sexual relationship cannot later be taken advantage of in the context o f that relationship, however, is mistaken, and we disclaim any indication that our holding today is based on Lee ’ s text messages. Our concerns on this point do not affect our judgment that, viewed in their entirety, the district court ’ s credibility assess ments should not be disturbed.6

The district court also found Souratgar and Lee to be 

### 1
intelligent, sophisticated individuals who were able to make use of 

### 2
legal proceedings in Singapore, Malaysia , and the United States. 

### 3
In April 2011, wh en Shayan was two, Lee filed an ex parte 

### 4
application in the Singapore High Court for sole custody. She 

### 5

cited concern that Souratgar would take Shayan from the country and 

### 6
cut her off from the boy. On May 16, the Subordinate Court of 

### 7
Singapore issued an e x parte order directing Souratgar to hand over 

### 8
Shayan ’ s passports and personal documents to Lee and barring 

### 9

Souratgar from removing the child from Singapore without court 

### 10
approval and Lee’s knowledge or consent

. Souratgar complied with 

### 11

the order, denied L ee ’ s charges , and cross

- applied for sole 

### 12
custody

. While the custody proceedings were pending in Singapore, 

### 13
Lee moved out of the marital home with Shayan and refused to 

### 14

disclose their whereabouts to Souratgar. He eventually found them 

### 15
in Malaysia, where L ee denied him access to the boy. Souratgar 

### 16

then filed a custody application in the Syariah Court of Malaysia, 

### 17
which granted joint custody to the couple in early July. 

### 18

T hereafter, Lee succeeded in obtaining a dismissal of that order 

### 19

from the Malaysian Sya riah Court for lack of jurisdiction. 

### 20
After Lee and Shayan returned to Singapore, t he custody 

### 21
proceedings in Singapore ’ s Subordinate Court resumed. Following a 

### 22
mediation session on July 14, 2011, the Subordinate Court barred 

### 23
either parent from removing Sha yan from Singapore w ithout the 

### 247

other ’ s consent and ordered interim supervised visitation for 

### 1

Souratgar of two hours per week at Singapore ’ s Centre for Family 

### 2

Harmony. Following another mediation session on February 16, 201 2 , 

### 3

both parties agreed to a conse nt order by the Subordinate Court to 

### 4
have custody decided by the Syariah Court of Singapore. 3 In the 

### 5

meantime, Shayan remain ed in Lee’s care, while Souratgar ’ s 

### 6

visitation time was doubled. 

### 7

On May 20, 2012, Lee removed Shayan from Singapore , in 

### 8

violation of the Singapore Subordinate Court ’ s order

. Souratgar , 

### 9
through a private investigator, eventually located Lee and Shayan 

### 10

in Du t chess County, and on October 18, filed an ex parte 

### 11
application in the district court under the Convention for Shayan ’ s 

### 12

return to Singapore. 

### 13

After ex parte hearings, the d istrict c ourt ordered Souratgar 

### 14
to surrender his passport and post bond , and transfer red custody of 

### 15
the child to Souratgar. T he district court then appointed a 

### 16
guardian ad litem to represent Shayan ’s interests and ordered 

### 17

Souratgar to make the child available to Lee for five sessions of 

### 18
visitation per week , with not less than three hours per session , 

### 19
during the pendency of the proceedings

. T he district court heard 

### 20
testimony from nine witnesses over a nine

- day e videntiary hearing, 

### 21

and on December 26 , granted Souratgar ’ s petition. This petition 

### 22

3 In late 2011, Lee had filed for divorce in Singapore’s Syariah Court and used that proceeding to dismiss the temporary joint custody order o f the Malaysian Syariah Court.8

was temporarily stayed pending emergency appeal. W e stayed 

### 1
enforcement of the repatriation o rder , imposed an expedited 

### 2
briefing schedule, and granted leave for the filing of amicus 

### 3

briefs. 

### 4

II. Discussion 

### 5

A. The Framework of the Hague Convention 

### 6
The Hague Convention, a multilateral treaty, is designed to 

### 7

“ protect children internationally from the harmful effects of their 

### 8
wrongful removal [by] establish[ing] procedures to ensure th eir 

### 9
prompt return to the State of their habitual residence , ” Abbot t v. 

### 10

Abbot t , 130 S. Ct. 1983, 2002 n.6 (2010) ( quotation marks and 

### 11
emphasis omitted ) , so that the “ rights of custody and of access 

### 12
under the law of one Contracting State are effectively resp ected in 

### 13
the other Contracting States, ” Chafin v. Chafin , 133 S. Ct. 1017, 

### 14

1021 (2013 ) (quotation marks omitted)

. The Convention ’ s remedy of 

### 15
repatriation is designed to “ preserve the status quo ” in the 

### 16

child ’ s country of habitual residence and “ deter par ents from 

### 17
crossing international boundaries in search of a more sympathetic 

### 18

court. ” Blondi n v. Dubois ( Blondin II ) , 189 F.3d 240, 246 (2d Cir. 

### 19

1999) (quotation mark s omitted). 

### 20

The removal of a child under the Convention is deemed 

### 21

“ wrongful ” when “ it is in breach of rights of custody attributed to 

### 22
a person . . . under the law of the State in which the child was 

### 23
habitually resident immediately before the removal

. ” Abbot t , 130 S. 

### 249

Ct. at 1989 (quotation marks omitted)

. Under the Convention, w hen 

### 1

a parent wro ngfully removes a child from one contracting state 

### 2

which is the child ’ s country of habitual residence to another 

### 3
contracting state, the other parent may initiate a proceeding to 

### 4
repatriate the child to the first state. 4 In the United States, t he 

### 5
petitioni ng party bears the burden of proving that the child was 

### 6
wrongfully removed. 42 U.S.C. § 11603(e)(1)(A). Once the 

### 7
petitioner “ establishes that removal was wrongful, the child must 

### 8

be returned unless the [respondent] can establish one of four 

### 9

defenses. ” B londin II , 189 F.3d at 245 (quotation mark s omitted ); 

### 10

s ee also 42 U.S.C. § 11601(a)(4). T he decision concerning 

### 11
repatriation shall “ not be taken to be a determination on the 

### 12
merits of any custody issue. ” Blondin II , 189 F.3d at 245 

### 13
(quotation marks omitt ed) ; Mota v. Castillo , 692 F.3d 108, 112 (2d 

### 14

Cir. 2012) ( “ [T] he Convention ’ s focus is simply upon whether a 

### 15
child should be returned to her country of habitual re sidence for 

### 16
custody proceedings

. ” )

. 

### 17
The parties do not dispute either that Singapore is the 

### 18

co untry of Shayan ’ s habitual residence or that his removal from 

### 19

4 The United States signed the Convention in 1981 and ratified the treaty, thereby becoming a contracting state, in 1988. See Ozaltin v. Ozaltin , 708 F.3d 355, 358 n.4 (2d Cir. 2013). Under Article 38, one state’s accession will have effect with respect to another contracting state only after such other state has declared its acceptance of the accession. 1343 U.N.T.S. at 104

. Singapore signed the Convention in 2010 and ratified it on March 1, 2011. Singapore’s accession was accepted by the United States on February 9, 2012 and entered into force on Ma y 1, about three weeks before Lee left Singapore with Shayan.10

Singapore was wrongful under the Convention. The issue on appeal 

### 1

is whether the two affirmative defenses that Lee raised under 

### 2

Article s 13(b) and 20 of the Convention preclude repatriation

. 

### 3

Un der Article 13(b), 

### 4
the judicial or administrative authority of the requested 

### 5 State is not bound to order the r eturn of the child if 

### 6 [the party opposing repatriation ] establishes that

. . . 

### 7 there is a grave risk that his or her return would expose 

### 8 the chil d to physical or psychological harm or otherwise 

### 9 place the child in an intolerable situation. 

### 10

1343 U.N.T.S. at 101. Under Article 20, repatriation also “ may be 

### 11
refused if this would not be permitted by the fundamental 

### 12
principles of the requested State rel ating to the protection of 

### 13
human rights and fundamental freedoms. ” Id

. 

### 14

The respondent parent opposing the return of the child has the 

### 15
burden of establishing “ by clear and convincing evidence that one 

### 16
of the exceptions set forth in article 13b or 20 of the Convention 

### 17
applies. ” 42 U.S.C. § 11603(e)(2) (A) . Subsidiary facts may be 

### 18
proven by a preponderance of the evidence. See In re Lozano , 809 

### 19

F. Supp. 2d 197, 224 (S.D.N.Y. 2011). The district court is vested 

### 20

with considerable discretion under the Convent ion . Indeed, “ e ven 

### 21
where the grounds for one of the se ‘ narrow ’ exceptions have been 

### 22

established, the district court is not necessarily bound to allow 

### 23
the child to remain with the abducting parent. ” Blondin II , 189 

### 24

F.3d at 246 n.4. 

### 2511 B. Standard of Review 

### 1

We r eview the district court ’ s interpretation of the 

### 2

Convention de novo and its factual determinations for clear error. 

### 3

Blondin v. Dubois ( Blondin IV ) , 238 F.3d 153, 158 (2d Cir. 2001)

. 

### 4

Our “r eview under the ‘ clearly erroneous ’ standard is significantly 

### 5

defer ential. ” Concrete Pipe & Prods. of Cal., Inc. v. Constr. 

### 6

Laborers Pension Trust for S. Cal. , 508 U.S. 602, 623 (1993). We 

### 7
must accept the trial court ’ s findings unless we have a “ definite 

### 8

and firm conviction that a mistake has been committed. ” Id

. 

### 9
(quot ation marks omitted). 

### 10

C. Lee’s Article 13(b) defense 

### 11

Lee contends that returning Sh a yan to Singapore would expose 

### 12

him to “ a grave risk ” of “ physical or psychological harm ” or 

### 13

“ otherwise place him in an intolerable situation ” and that the 

### 14

district court ’ s find ing to the contrary was error. The harm s he 

### 15

could face upon return , she asserts, are (1) exposure to spousal 

### 16

abuse ; (2) direct abuse from his father ; or (3) the loss of his 

### 17

mother. After carefully reviewing the record, we find that Lee ’ s 

### 18

arguments are pe rmeated with conjecture and speculation and that 

### 19

there was no error in the district court ’ s determination that Lee 

### 20

had failed to meet her burden to establish the Article 13(b) 

### 21

defense. 

### 22
Under Article 13(b), a grave risk of harm from repatriation 

### 23

arise s in t wo situations: “ (1) where returning the child means 

### 2412

sending him to a zone of war, famine, or disease; or (2) in cases 

### 1
of serious abuse or neglect, or extraordinary emotional dependence, 

### 2
when the court in the country of habitual residence, for whatever 

### 3

reas on , may be incapable or unwilling to give the child adequate 

### 4
protection. ” Blondin IV , 238 F.3d at 162 ( quotation marks omitted)

. 

### 5
The potential harm to the child must be severe , and the “ [t]he 

### 6
level of risk and danger required to trigger this exception ha s 

### 7
consistently been held to be very high. ” Norden

- Powers v. 

### 8
Beveridge , 125 F. Supp

. 2d 634 , 640 (E.D.N.Y. 200 0 ) (citing cases)

. 

### 9
The grave risk involves not only the magnitude of the potential 

### 10

harm but also the probability that the harm will materialize. Van 

### 11

de Sande v. Van de Sande , 431 F.3d 567, 570 (7th Cir. 2005)

. 

### 12

This “‘ grave risk ’ exception is to be interpreted nar rowly, 

### 13

lest it swallow the rule

. ” Simcox v. Simcox , 511 F.3d 594, 60 4 

### 14

(6th Cir. 2007 ); Blondin II , 189 F.3d at 246 ( warning that 

### 15
permissive invocation of the affirmative defenses “ would lead to 

### 16
the collapse of the whole structure of the Convention by depriving 

### 17
it of the spirit of mutual conf idence which is its inspiration ” 

### 18

( quotation marks and citation omitted ) )

. 

### 19

1. Risk f rom exposure to spousal abuse 

### 20

Many case s for relief under the Convention arise from a 

### 21
backdrop of domestic strife . Spousal abuse, however, is only 

### 22

relevant under Article 13(b) if it seriously endangers the child. 

### 23

Th e Article 13(b) inquiry is not whether repatriation would place 

### 2413

the respondent parent ’ s safety at grave risk, but whether so doing 

### 1
would subject the child to a grave risk of physical or 

### 2
psychological harm. Charalambous v. Charalambous , 627 F.3d 462, 

### 3

468 (1st Cir. 2010) (per curiam)

. 

### 4

The except ion to repatriation ha s been found where the 

### 5
petitioner showed a “ sustained pattern of physical abuse and/or a 

### 6
propensity for violent abuse ” that presented an intolerably grave 

### 7

risk to the child. Laguna v. Avila , No. 07

- CV

- 5136 (ENV), 2008 WL 

### 8

1986253 , at *8 (E.D.N.Y. May 7, 2008) . Evidence of “ [ p ] rior 

### 9
spousal abuse, though not directed at the child, can support the 

### 10
grave risk of harm defense , ” Rial v. Rijo , No. 1:10

- cv - 01578

- RJH , 

### 11

2010 WL 1643995, at * 2 (S.D.N.Y. Apr. 23, 2010) , as could a showing 

### 12

of the c hild’s exposure to such abuse , Elyashiv v. Elyashiv , 353 F. 

### 13

Supp. 2d 394 , 408 (E.D.N.Y. 2005). Evidence of this kind, however, 

### 14
is not dispositive in these fact

- intensive cases

. 

### 15

S poradic or isolated incidents of physical discipline directed 

### 16

at the child, o r some limited incidents aimed at persons other than 

### 17

the child , even if witnessed by the child, have not been found to 

### 18

constitute a grave risk. See In re Filipczak , 838 F. Supp. 2d 174, 

### 19

180 (S.D.N.Y. 2011 ) (granting repatriation petition even though the 

### 20

c hild had witnessed one incident of spousal abuse as a two

- year 

### 21

old); Rial , 2010 WL 1643995 at *2

– 3 (ordering return of child 

### 22
despite evidence that petitioner was verbally and sometimes 

### 23

p hysically abusive to respondent ); Lachhman v. Lachhman , No. 08

- CV

- 

### 2414

0 436 3 (CPS) , 2008 WL 5054198, at *9 (E.D.N.Y. Nov. 21, 2008) 

### 1
(concluding that evidence of petitioner ’ s previous arrest, but not 

### 2
conviction, on domestic abuse charges was insufficient to establish 

### 3
grave risk where there was no evidence that pet i tioner had ever 

### 4

harmed child). In this case, the district court found that , while 

### 5

Lee was subjected to domestic abuse on certain occasions

– albeit 

### 6

less than she claimed , at no time was Shayan harmed or targeted

. 

### 7

We have held that Article 13(b) relief could be granted if 

### 8
repatriation posed a grave risk of causing unavoidable 

### 9
psychological harm to the child. See Blondin IV , 238 F.3d at 160

- 

### 10

61 (affirming denial of petition to repatriate after an expert 

### 11
psychologist opined that returning the boy and girl to France, 

### 12

where th ey had been abuse d by their father , would likely trigger 

### 13

recurrence of PTSD , and that no arrangement could mitigate this 

### 14

risk ). The holding in Blondin IV depended on the fact, due to the 

### 15
nature of the potential harm at issue

– recurrence of PTSD that 

### 16

woul d occur as soon as the children entered France

– there was 

### 17
nothing the courts could do to prevent it. In this case, there is 

### 18
nothing in the record beyond speculation that Shayan would suffer 

### 19

unavoidable psychological harm if returned to Singapore

. Neithe r 

### 20

party nor the guardian ad litem requested a psyc hological 

### 21
evaluation of the boy, and t he guardian ad litem reported, after 

### 22

observ ing Shayan ’ s interactions w ith both parents and interviewing 

### 23
him separately, that the boy appeared to be an active and happy 

### 2415

child, who seemed distressed about the difficulties between his 

### 1

parents

. Shayan expressed unqualified love for both parents and 

### 2
indicated that he was never physically disciplined and never saw or 

### 3
heard either parent hit the other or try to hurt the other parent. 

### 4
These observations are consistent with the reports to the Singapore 

### 5

Subordinate Court by Singapore ’ s Centre for Family Harmony, which 

### 6
supervised and reported on Souratgar ’ s visits with the boy

. In 

### 7
contrast, the girl in Blondin IV had herself been abused and 

### 8
expressed fear of her father. 

### 9

The circuit court cases affirming denial of repatriation cited 

### 10
by Lee are distinguishable in that the petitio ning parent had 

### 11
actually abused, threatened to abuse , or inspired fear in the 

### 12
children in question. See Khan v. Fatima , 680 F.3d 781, 787 (7th 

### 13

Cir. 2012) ( daughter told social worker she was “ scared ” of her 

### 14

father ); Simcox , 511 F.3d at 608 (father subjected children to 

### 15

“ repeated beatings, hair pulling, ear pulling, and belt

- whipping ” 

### 16
and psychological abuse) ; Van de Sande , 431 F.3d at 570 (father 

### 17
spanked daughter and threatened to kill wife and children); Walsh 

### 18

v. Walsh , 221 F.3d 204, 221

- 22 (1st Cir. 2000) (one child diagnosed 

### 19
with PTSD as a result of physical abuse and father repeatedly 

### 20

violated court order s); Blondin II , 189 F.3d at 243 (father tied 

### 21
cord around daughter ’ s neck and threatened to kill mother and 

### 22
daughter); s ee also Baran v. Beaty , 526 F.3d 1340, 1346 (11th Cir. 

### 23

2008) (despite the absence of any evidence of past abuse of the 

### 2416

child by the fathe r, the father w as found to be frequently drunk, 

### 1
emotionally unstable, and to have threatened the child and verbally 

### 2
and physically abused the mother in the child’s presence ); 

### 3
Danaipour v. McLarey , 286 F.3d 1 , 5

- 8 (1st Cir. 2002) ( father may 

### 4
have sexually a bused the daughter). In distinguishing the 

### 5
foregoing cases, we do not mean to suggest that only evidence of 

### 6
past parental abuse of the child, past parental threat s to the 

### 7
child or the child’s fear of a parent can establish a successful 

### 8

Article 13(b) defen se. We only hold that in this case, the 

### 9
evidence, which does not match the showing in those cases, does not 

### 10
establish that the child faces a grave risk of physical or 

### 11
psychological harm upon repatriation. 

### 12

Lee contends that the d istrict c ourt erred in disc ounting the 

### 13

likelihood that Shayan would be exposed to renewed domestic strife 

### 14

and suffer grievous psychological harm upon his return to Singapore. 

### 15
She also faults the district court for refusing to credit expert 

### 16
testimony characterizing Souratgar as havi ng a coercive and 

### 17
controlling personality type with a tendency to hurt women and 

### 18

children. At the hearing, the district c ourt heard the 

### 19
psychological expert testimony of Dr. B.J. Cling, who described 

### 20
abusive spouses of the “ coercive control ” type and of t he 

### 21

“ situational ” type and placed Souratgar in the former category

. 

### 22
The coercive control type is said to demand domination and control 

### 23
and grows more dangerous upon separation from the victim. On this 

### 2417

basi s, Dr. Cling concluded that Souratgar still pose s an “ extreme 

### 1
danger ” to Lee even though they had been estranged for more than a 

### 2

year . Dr. Cling’s assessment of Souratgar was based entirely on 

### 3

Lee ’ s answers to a survey , which t he district court fo und to 

### 4

contain inaccuracies . The district court therefore discredited Dr. 

### 5
Cling’s conclusion s . Our review of the record yields no basis for 

### 6
disagreement with the district court ’ s finding

. 5 For us to hold 

### 7
evidence of spousal conflict alone, without a clear and convincing 

### 8
showing of grave risk of harm to the chi ld, to be sufficient to 

### 9

decline repatriation, would unduly broaden the Article 13(b) 

### 10
defense and undermine the central premise of the Convention : that 

### 11
wrongfully removed children be repatriated so that questions over 

### 12
their custody can be decided by courts in the country where they 

### 13
habitually reside. Simcox , 511 F.3d 594 at 604

. Our holding today 

### 14
is not that abuse of the kind described by Lee can never entitle a 

### 15
respondent to an Article 13(b) defense; rather it depends on the 

### 16

5 In rejecting Dr. Cling’s “coercive control” analysis, the district court stated that the evidence did not “support any conclusion that petitioner is an obsessed or jilted lover who seeks to b e reunited with respondent or prevent others from being with her.” Souratgar , 2012 WL 6700214, at *10. Although we find no error in the district court’s substantive treatment of Dr. Cling’s testimony, she did not testify that Souratgar was controlling be cause he had been “jilted.” The arguments of Lee and amici regarding the risk of violence from a formerly abusive spouse do not depend on any such characterization, and we disclaim any suggestion that only a person dealing with an “obsessed or jilted love r” might face such a risk. As we have explained, however, we find no clear error in the district court’s finding that the facts here do not indicate a grave risk of harm to the child in this particular instance.18

district court’s finding that Shayan would not be in danger of 

### 1
being exposed to a grave risk of physical or psychological harm and 

### 2
that the Singapore court system has demonstrated its ability to 

### 3
adjudicate the dispute over his custody

. 

### 4

2. Risk of abuse by the father 

### 5

Lee also contends that Shayan faces a direct risk of harm from 

### 6
his father, who , having been abusive to Lee , is also likely to turn 

### 7
on Shayan. In support of this assertion, a mici cite the 

### 8
description of the “ coercive control ” type in the social science 

### 9

literature that draw s cer tain correlations between perpetrators of 

### 10
spousal abuse and child abuse. However, given the problems with Dr. 

### 11
Cling ’ s metho do logy in type

- casting Souratgar , the lack of any 

### 12

indicia of ill

- will on the part of Souratgar toward Shayan , and 

### 13

contrary credited evidence of a loving father

- son relationship, 

### 14

there is no clear and convincing showing in the record that the boy 

### 15
faces a gra ve risk of harm from his father. 

### 16

3. “ Grave risk ” arising from loss of the mother 

### 17

Lee also posits various scenarios in which the boy w ould be 

### 18
deprived of his mother post

- repatriation . She claims Souratgar may 

### 19

(a) resort to Syariah court proceedings in Singapore or Malaysia to 

### 20
win custody outright; (b) abscond with Shayan to Iran; or 

### 21

(c) expose her to the charge of apostasy ( leaving the Muslim faith ) , 

### 22
a religious crime punishable by death in her h ome country of 

### 2319

Malaysia

. The district court dismissed these claims as lacking 

### 1
factual support. 

### 2

As an initial matter, we cannot conclude that the prospect 

### 3
that one parent may lose custody of the child, post

- repatriation, 

### 4
necessarily constitutes a grave risk to the child under the 

### 5

Convention. Since the Convention defers the determination of 

### 6
custody to courts in the country where the child habitual ly resides , 

### 7

it is quite conceivable that in some c ases one or the other parent 

### 8

may lose legal custody after repatriation and be deprived of access 

### 9
to the child. Thus, the possible loss of access by a parent to the 

### 10

child does not constitute a grave risk of harm per se for Article 

### 11
13(b) purposes. See Char alambous , 627 F.3d at 469 ( “ [T] he impact 

### 12
of any loss of contact with the Mother is something that must be 

### 13
resolved by the courts of the Children ’ s habitual residence

. ” 

### 14
(quotation marks omitted) )

. But even assuming that the prospect of 

### 15
the child losing his mother poses a grave risk to the child ’ s well



### 16
being , there is no basis to disturb the district court ’ s finding 

### 17

that Lee has not made a clear and convincing showing that any of 

### 18

the scenarios that she raise d is likely to occur. 

### 19

a. Loss of c ustody through Syari ah Court 

### 20 proceedings 

### 21

Lee argues that Souratgar ’ s attainment of custody in a Syariah 

### 22
Court is preordained. T he d istrict court heard expert testimony 

### 23

that under Islamic law , a woman ’ s testimony may be entitled to less 

### 24
weight than a man ’ s and there are pres umptions in custody 

### 2520

determinations that favor fathers over mothers and Muslims over 

### 1

non - Muslims

. Lee has not shown, however, that the question of 

### 2
custody is likely to be decided by a Syariah Court upon 

### 3
repatriation , much less that such courts are predispo sed to reach a 

### 4

certain outcome. If anything , the record is to the contrary . L ee 

### 5
successfully obtained a dismissal of the order of the Malaysia 

### 6
Syariah C ourt, which had awarded the couple joint custody, for lack 

### 7
of jurisdiction. Furthermore, h er aspersio ns on Syariah 

### 8
proceedings in Singapore are inconsistent with her consent in 

### 9

Fe bruary 2012 to have custody decided by that court. 

### 10
Moreover, the Singapore Sy a riah Court has pendant, not 

### 11
exclusive jurisdiction, to hear child custody matters among Muslim 

### 12
coupl es. By statute, divorce actions between individuals of the 

### 13

Muslim faith , a religious minority in Singapore , must be brought in 

### 14

the country ’ s Syariah Court. Ad ministration of Muslim Law Act 

### 15

( “ AMLA ” ) § 35( 2)(b) (2013)(Sing.)

. But any party to a divorce 

### 16

pro ceeding before the Syariah Court may apply for leave to have 

### 17
custody decided by a secular court. Id

. § 35A( 1 ) &(2)

. And when 

### 18
both parties consent, they do not need to apply for leave in the 

### 19
Syariah Court to have custody matters decided in a secular court

. 

### 20

Id

. § 35A(5)

- (7)

. Souratgar has commit ted to pursue any custody 

### 21
proceedings, upon repatriation, in Singapore ’ s civil courts. Even 

### 22

if this undertaking is unenforceable , as Lee insists, she may still 

### 23

invoke it, as well as this Court ’ s decision , in any ap plication to 

### 2421

transfer the custody determination from the Singapore Syariah Court 

### 1

under AMLA § 35A( 1 ). In light of these options, we cannot fault 

### 2

the district court’s conclusion that Lee failed to make a 

### 3
sufficient showing that the question of custody will be decided by 

### 4

a Syariah Court. 6 

### 5

b. Risk of father ’ s f light to Iran 

### 6

Lee also claims that Souratgar will abscond with Shayan to 

### 7

Iran to subvert the custody proceedings in Singapore

. She 

### 8

testified that Souratgar has expressed a preference for Iranian 

### 9
military schooling for the boy, that he would like to take Shayan 

### 10
to see the boy ’ s paternal grandparents in Iran, and that he has 

### 11
considered the possibility of relocating his business activity to 

### 12
that country . The district court , however, found no credible 

### 13
showing that Souratgar would abduct the boy to Iran or any other 

### 14
country in violation of a court order , and we discern no error in 

### 15
this finding

. See Charalambous , 627 F.3d at 469 (denying relief 

### 16

under Article 13(b) where mother ’ s “ subjective perception of a 

### 17

thre at

. . . was not corroborated by other evidence in the record ” 

### 18
(quotation mark s omitted) ) ; Walsh , 221 F.3d at 221 ( granting relief 

### 19
after concluding that relying on courts to provide protection had 

### 20
“little chance of working” given the respondent’s history o f 

### 21
violating court orders). We cannot fail to observe, moreover, that 

### 22

6 

### Lee also claims that Souratgar schemed t o deprive her of her Malaysian citizenship and jeopardize her ability to contest Shayan ’ s custody in Singapore. We have considered this argument and find it to be without merit.22

unlike Lee, Souratgar has to date honored the legal requirem ents of 

### 1
the courts in Singapore. 

### 2

c. Apostasy 

### 3
Finally, Lee claims that Souratgar exposed her to being 

### 4
charge d with apostasy, which she says, is a capital offense in 

### 5
Malaysia and thus created a “ grave risk ” that Shayan would lose his 

### 6

mother . This claim is based on the testimony of Yasmeen Hassan, 

### 7

Lee’s expert witness on Islamic law , who testified that apostasy is 

### 8
punishable by death in Malaysia . The claim distorts both the facts 

### 9

and law. Souratgar did not accuse Lee of leaving the faith. In 

### 10

his attempt to obtain access to Shayan in Malaysia , Souratgar filed 

### 11
an affidavit with Malaysia ’ s Syariah Court reporting that Lee had 

### 12

committed certain acts in violation of Islamic law , such as selling 

### 13
cakes containing alcohol online and attending church. Additionally, 

### 14

a lthough punishment for those who abandon the Muslim faith has been 

### 15
debated in Malaysia, the national government has consistentl y 

### 16
blocked any formal implementation of rules concerning apostasy. 

### 17

See Kikue Hamayotsu, Once a Muslim, Always a Muslim: The Politics 

### 18
of State Enforcement of Syariah in Contemporary Malaysia , 20 S

. E. 

### 19

Asia Research 399, 400 (2012) ; Abdullah Saeed & Hassan S aeed, 

### 20
Freedom of Religion, Apostasy and Islam 19 (2004). Hence, t here is 

### 21

no indication that Lee could even be charged with apostasy in 

### 22
Malaysia, much less face the death penalty

. 

### 2323 D. Lee’s Article 20 defense 

### 1

The Article 20 defense allows repatriation to be de nied when 

### 2

it “ would not be permitted by the fundamental principles of the 

### 3
requested State relating to the protection of human rights and 

### 4

fundamental freedoms

. ” U.S. State Dep’t , Hague International Child 

### 5
Abduction Convention: Text and Legal Analysis , Pub. Notice 957, 51 

### 6
Fed. Reg. 10,494, 10,510 ( Mar. 26, 1986). The article is to be 

### 7

“ restrictively interpreted and applied

. ” Id . Article 20 is a 

### 8

“ unique formulation ” that embodies a political compromise among the 

### 9
states that negotiated the Convention, which “ might never have been 

### 10
adopted ” otherwise. Id

. The defense is to be invoked only on “ the 

### 11
rare occasion that return of a child would utterly shock the 

### 12
conscience of the court or offend all notions of due process. ” Id

. 

### 13

It “ is not to be used . . . as a ve hicle for litigating custody on 

### 14
the merits or for passing judgment on the political system of the 

### 15
country from which the child was removed. ” Id

. We note t hat this 

### 16
defense has yet to be used by a federal court to deny a petition 

### 17
for repatriation

. Fed. Ju d. Ctr. , The 1980 Hague Convention on the 

### 18
Civil Aspects of International Child Abduction: A Guide for Judges 

### 19

85 (2012). 

### 20
In urging the Article 20 exception in this case, Lee insists 

### 21
broadly that Syariah Courts are incompatible with the principles 

### 22

“ relating to the protection of human rights and fundamental 

### 23

freedoms ” of this country. While this general assertion might find 

### 2424

sympathy among some in this country as a political statement, w e 

### 1
decline to make this categorical ruling as a legal matter

. 

### 2

Moreover, Lee has failed to show that the issue of custody is 

### 3
likely to be litigated before Singapore ’ s Syariah Court. Given 

### 4

that failure, w e are not inclined to conclude simply that the 

### 5
presence of a Syariah Court in a foreign state whose accession to 

### 6

the Convention has been recognized by the United States is per se 

### 7

violative of “ all notions of due process. ” 7 51 Fed. Reg. 10 , 510 

### 8

(Mar. 26, 1986)

. 

### 9

We are also mindful of the need for comity , as “ [t] he careful 

### 10
and thorough fulfillment of our treaty obligations stands not only 

### 11
to protect children abducted to the United States, but also to 

### 12
protect American children abducted to other nations

- whose courts, 

### 13
under the legal regime created by this treaty, are expected to 

### 14
offer reciprocal protection. ” Blondin II , 189 F.3d at 242 . In the 

### 15
exercise of comity, “ we are required to place our trust in the 

### 16
court of the home country to issue whatever orders may be necessary 

### 17
to safeguard children who come before it. ” Id

. at 248

- 49; c f. 

### 18

Carrascosa v. McGuire , 520 F.3d 249 , 261

- 63 (3d Cir. 2008) 

### 19
(criticizing a Spanish court for construing an agreement not to 

### 20

take child out of the United States without the consent of both 

### 21

7 Indeed, such a holding would contradict the State Department’s view expres sed upon Singapore’s accession as a bilateral partner under the Convention last year, that Singapore is a “role model” among states in the region. United States and Singapore become Hague Abduction Convention Partners , U.S. Dep’t of State, May 3, 2012, http://www.state.gov/r/pa/prs/ps/2012/05/189236.htm

.25

parents as violating fundamental right s under the Spanish 

### 1
Constitution for citizens to travel and choose their place of 

### 2

r esidence and using Article 20 to ju stify denial of repatriation). 

### 3

For all of the above reasons, we conclude that the district 

### 4
court did not err in rejecting Lee’s Article 20 defense. 

### 5

III. Conclusion 

### 6

We have considered all of Lee ’ s remaining arguments and find 

### 7

t hem to be without merit. For the foregoing reasons, the district 

### 8

court ’s grant of Souratgar’s petition for his son’s repatriation is 

### 9

AFFIRMED. 

### 10