United States Court of Appeals

For the First Circuit

No. 10-2227

SAVVAS CHARALAMBOUS,

Petitioner, Appellee,

v.

ELIZABETH ROHNERT CHARALAMBOUS,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge]

Before

 Lynch, Chief Judge, 

Lipez and Howard, Circuit Judges. 

Judy Potter for appellant.

David S. Abramson, with whom Adrianne E. Fouts was on brief,

for appellee. 

December 8, 2010
-2-

Per Curiam. Savvas Charalambous filed a petition for the

return of his two children, A.C. and N.C., to Cyprus pursuant to

the Hague Convention on the Civil Aspects of International Child

Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, which was implemented

by the International Child Abduction Remedies Act (ICARA), 42

U.S.C. § 11601 et seq. The children were removed in June 2010 from

Cyprus, their country of habitual residence, to the United States

by their mother, Elizabeth R. Charalambous. She did not return the

children to Cyprus before September 2010 as she had represented she

would. She defended against the petition primarily on the ground

that returning the children would expose them to a grave risk of

harm, an exception to return under Article 13(b) of the Convention.

Following a two-day evidentiary hearing, the district

court held that there was not clear and convincing evidence of a

grave risk of harm to the children, and that the Convention

required their return. The court ordered the children placed in

their father's custody no later than October 20, 2010--a date later

postponed to November 2, 2010--and ordered certain interim

conditions. In an October 28, 2010 Order, this court stayed the

removal of the children pending the outcome of respondent's appeal,

but expedited the appeal. The court heard oral argument on

December 7, 2010. 

We now lift the stay, and affirm, finding no error of law

by the district court and holding that its findings and conclusions
-3-

are well supported. We order that the children be placed in the

custody of the father no later than December 9, 2010 at 12:00 p.m.

for their return to Cyprus, and we return jurisdiction to the

district court should any further orders be necessary to secure

enforcement.

I. 

We briefly summarize the facts that led to the present

appeal, taking them from the record of proceedings before the

district court. We refer to the parents by their first names and

to the children by their initials. 

Savvas, a citizen of Cyprus, married Elizabeth, a citizen

of the United States, in a civil ceremony in Virginia in 1996, and

again in a religious ceremony in Cyprus in 1998. The couple has

resided in Limassol, Cyprus since December 1997, save for a few

months in 2004 during which Elizabeth and Savvas briefly separated

and Elizabeth returned on her own to her parents' home in Maine.

They have two children: N.C., born in 2002, and A.C., born in 2008.

On June 18, 2010, Elizabeth, N.C. and A.C. departed

Cyprus for a summer visit to Elizabeth's family in Maine.

Elizabeth had purchased return tickets to Cyprus, and Savvas

expected Elizabeth and the children to return in August 2010. 

By July 2010, Savvas came to believe Elizabeth would not

return to Cyprus with the children as planned, based on her failure

to provide the children opportunities to speak to their father, the
-4-

infrequent nature of her communications with him, and what she said

when she did communicate. These beliefs were confirmed when

Elizabeth informed Savvas on July 23, 2010 that she and the

children would not be returning as planned. Consequently, on July

26, 2010, Savvas filed an application for return of his children

under the Hague Convention with the Central Authority in Cyprus.

Savvas then filed a petition in the District of Maine on September

3, 2010, alleging that Elizabeth had wrongfully retained N.C. and

A.C. in the United States, and seeking the return of the children

to Cyprus pursuant to the Hague Convention and ICARA. 

The district court promptly held an evidentiary hearing

on October 6 and 7, 2010. Both Savvas and Elizabeth testified in

person; the court heard evidence by video from other witnesses in

Cyprus. On October 12, 2010, in a careful and sensitive opinion,

the court entered its Findings of Fact and Conclusions of Law,

granting Savvas's petition, and ordering the children returned to

the custody of their father by October 20, 2010. See Charalambous

v. Charalambous, No. 10-CV-375, 2010 WL 4115495, at *12 (D. Me.

Oct. 12, 2010). The court concluded that Elizabeth had wrongfully

retained the children in Maine and that Elizabeth had failed to

prove either that Savvas had consented or acquiesced to the

retention or that the children faced a grave risk of physical or
The court determined that Cyprus was the children's 1

country of habitual residence. 

-5-

psychological harm if they were returned to Cyprus. Id. at *9-11. 1

We discuss the relevant findings in more detail in the next

section. 

The court also ordered that, until the return, Elizabeth

not remove the children from the District of Maine without approval

of the court, and that the parties "shall seek a determination as

soon as possible from a court of competent jurisdiction in Cyprus

regarding the custody, support, and visitation with respect to the

children." Id. at *12. The court ordered the return of N.C.'s and

A.C.'s passports upon receipt of an affidavit from either Savvas or

Elizabeth that they would be used solely for the purpose of travel

to Cyprus. Id. The court clarified that its order in no way

precluded an independent custodial determination by an appropriate

authority in Cyprus. Id. 

On October 15, 2010, Elizabeth filed both a Motion to

Stay the Judgment and a Motion to Extend Time Within Which to Turn

Over Children so that she might pursue an appeal. On October 18,

2010, the district court denied Elizabeth's Motion to Stay, and

granted the Motion to Extend Time. The court reset the deadline

for Elizabeth to return N.C. and A.C. to Savvas to November 2,

2010. 
On November 9, 2010, Savvas filed an Emergency Motion to 2

Modify Stay in response to several incidents involving Elizabeth's

treatment of A.C. and N.C., including her unilateral decision to

have N.C. hospitalized for behavioral issues. The Motion sought

reconsideration of our Order granting the stay, or, in the

alternative, a modification of the stay to award Savvas complete

temporary custody of the children until the stay is lifted. The

Motion also requested (1) an order that each parent must confer

with the other regarding decisions relating to medical treatment of

the children, and (2) an order that neither party may initiate

proceedings that would involve any custodial determination by any

court. 

Except for the request to modify the stay, we transferred

all aspects of the Emergency Motion to the district court. The

district court held a conference with counsel on November 15, 2010,

and issued an order the same day, which concluded that Elizabeth's

actions referenced in Savvas's Emergency Motion "appear to reflect

a panicked parent seeking to avoid the then-pending November 2,

2010 turnover date." The district court granted the Emergency

Motion in part, ordering that: (1) neither parent obtain medical or

mental health treatment without notice to the other parent; (2) in

the event that one of the children requires emergency medical care,

the parent deciding to seek such care must notify the other parent

within thirty minutes of the decision; (3) Savvas and Elizabeth

have equal parental rights pending the outcome of the appeal; and

(4) neither party may initiate proceedings that would involve any

determination of custody while this matter remains pending.

Finally, the court allowed Elizabeth to retain short-term custody

of the children, but provided Savvas with specific visitation

times. These conditions have remained in place pending the outcome

of this appeal and have not been challenged.

-6-

This appeal followed, accompanied by an Emergency Motion

to Stay Judgment of the District Court. We granted the Motion to

Stay on October 28, 2010. That stay was modified and other

conditions were imposed on the mother as a result of actions she

unilaterally took during the pendency of the appeal.2

II. 

We review the district court's interpretation of the

Hague Convention de novo. Danaipour v. McLarey, 286 F.3d 1, 13
-7-

(1st Cir. 2002). We review the district court's findings of fact

for clear error, and its application of the Convention to the facts

de novo. Id. 

The Hague Convention was enacted to "secure the prompt

return of children wrongfully removed to or retained in any

Contracting State" and to "ensure that rights of custody and of

access under the law of one Contracting State are effectively

respected in the other Contracting States." Hague Convention, art.

1; see also Abbott v. Abbott, 130 S. Ct. 1983, 1989 (2010). The

Convention establishes a strong presumption favoring return of a

wrongfully removed child, Danaipour, 286 F.3d at 13, and is "based

on the principle that the best interests of the child are well

served when decisions regarding custody rights are made in the

country of habitual residence," Abbott, 130 S. Ct. at 1995. The

Hague Convention is generally intended to restore the status quo

before the removal and to prevent a parent from engaging in

international forum shopping. Kufner v. Kufner, 519 F.3d 33, 38

(1st Cir. 2008). We interpret the Convention's text mindful of

these purposes. Abbott, 130 S. Ct. at 1990. 

Children who have been wrongfully retained outside of

their country of habitual residence must be expeditiously returned,

unless the respondent can prove one of the defenses provided for by

the Convention. Hague Convention, arts. 12-13. In the district

court, Elizabeth invoked the Article 13(b) defense that returning
Before the district court, Elizabeth also invoked the 3

defense, which the court rejected, that Savvas "had consented to or

subsequently acquiesced in the removal or retention" of the

children in the United States. Hague Convention, art. 13(a).

In any event, the record firmly supports the district 4

court's conclusions. Elizabeth had N.C. evaluated for sexual abuse

in connection with these proceedings, but there was insufficient

evidence to support any finding that N.C. was the victim of sexual

abuse. Furthermore, Elizabeth admitted she had never complained

about such abuse to anyone while in Cyprus. Neither N.C.'s

teachers nor N.C.'s pediatrician saw any signs of abuse, nor did

any of the family members. The district court's conclusions that

-8-

N.C. and A.C. to Cyprus would create a "grave risk" of "physical or

psychological harm" or "otherwise place the child[ren] in an

intolerable situation." Id. at art. 13. Specifically, she alleged

a grave risk of such harm existed based on the children having been

physically, sexually or psychologically abused by Savvas and his

mother. She also argued that returning to Cyprus would place her

own safety at risk, thus causing her children psychological harm.3

See Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000). The

district court rejected Elizabeth's argument based on its findings

of fact.

On appeal, Elizabeth waives most of her claims and only

pursues discrete portions of her grave risk defense. Specifically,

Elizabeth has abandoned a primary claim she made to the district

court: that N.C. or A.C. would be subject to physical harm in the

form of sexual or other abuse upon their return to Cyprus. On

appeal, Elizabeth has not contested the district court's findings

on this point.4
Elizabeth "has simply not established by any evidence that her

Children were sexually abused by their Father or anyone else living

in Cyprus" and that "both parents love their children and neither

would or did sexually abuse them" are amply supported. 

With respect to other abuse, the record reflects genuine

and reasonable disagreements between Elizabeth and Savvas regarding

proper methods of discipline; it does not reflect physical abuse

rising to a level "a great deal more than minimal" as required to

make a showing of grave risk. Walsh v. Walsh, 221 F.3d 204, 218

(1st Cir. 2000). 

-9-

The only questions on appeal are (1) whether the district

court erred in its interpretation of the Hague Convention

concerning any psychological harm to the children that returning

them to Cyprus could cause, and (2) whether it was clearly

erroneous for the district court to conclude that Elizabeth had not

demonstrated that any spousal abuse would create a grave risk to

the children.

Under Article 13(b), "grave" means a more than serious

risk, but it need not be an immediate risk. See Danaipour, 286

F.3d at 14 (citing Hague International Child Abduction Convention:

Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26,

1986)); Walsh, 221 F.3d at 218. Elizabeth bears the burden of

establishing the existence of such a grave risk by clear and

convincing evidence. 42 U.S.C. § 11603(e)(2)(A). The district

court's conclusion that she failed to meet her burden is not in

error and is strongly supported by the record.
-10-

A. Psychological Harm

Elizabeth argues that the district court made an error of

law and asserts that the court only considered physical harm,

sexual abuse, and spousal abuse, and overlooked the question of

"psychological harm," a term used in Article 13(b). 

The argument flatly ignores the fact that the district

court made an express finding that Elizabeth had failed to meet her

burden of showing psychological harm: "Respondent has not shown by

clear and convincing evidence that returning the Children to Cyprus

will expose them to physical or psychological harm or otherwise

place them in an intolerable situation." Charalambous, 2010 WL

4115495, at *8 (emphasis added); cf. Whallon v. Lynn, 230 F.3d 450,

460 (1st Cir. 2000) (rejecting argument that the court overlooked

psychological harm). 

There was no error of law in the district court's

organization of the subsidiary discussions of Elizabeth's Article

13(b) claims under the subject-headings "Sexual Abuse," "Physical

Abuse," and "Spousal Abuse"; these were the central arguments she

advanced. This organization does not betray a failure to consider

the risk that returning the children to Cyprus would cause them

psychological harm. 

The district court was highly attuned to the

psychological well-being of N.C. and A.C., and to the risks

presented to the children's emotional well-being. The district
The record contains no evidence as to other services that 5

might be available in Cyprus outside of Limassol, including in the

capital city of Nicosia. There are only Elizabeth's statements

that she had "never come across a child psychologist" during her

time in Cyprus and that there were no mental health programs in the

private schools in which she worked as a teacher.

It is not at all clear why the family would be motivated 6

to deny psychological services if N.C. were in need of them.

-11-

court also explicitly considered the forms of psychological harm

that Elizabeth identifies: the risks that returning N.C. and A.C.

to Cyprus might force them to witness future spousal abuse (they

had not witnessed any before), or force their separation from their

mother should Elizabeth choose not to return to Cyprus. The

finding that she had failed to meet her burden of showing grave

risk of psychological harm to the children is amply supported. 

On appeal, Elizabeth also argues the district court

failed to adequately consider the risk that, if returned to Cyprus,

N.C. will be less likely to get the psychological treatment she

believes he needs. She says that treatment is unavailable, citing

that there are only three therapists specializing in the treatment

of children in Limassol, and that Savvas's extended family will 5

prevent N.C. from obtaining the psychological services he

requires. The district court explicitly considered "the . . . 6

evidence relating to the influence of the Charalambous family in

Cyprus," and concluded that "the total weight of the evidence does

not present a clear and convincing case of grave risk."

Charalambous, 2010 WL 4115495, at *11. "The Article 13(b) defense
The court further explained: 7

In other words, at one end of the spectrum are

those situations where repatriation might

cause inconvenience or hardship, eliminate

certain educational or economic opportunities,

or not comport with the child's preferences;

at the other end of the spectrum are those

situations in which the child faces a real

risk of being hurt, physically or

psychologically, as a result of repatriation.

The former do not constitute a grave risk of

harm under Article 13(b); the latter do. 

Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).

-12-

may not be used 'as a vehicle to litigate (or relitigate) the

child's best interests.'" Danaipour, 286 F.3d at 14 (quoting Hague

International Child Abduction Convention: Text and Legal Analysis,

51 Fed. Reg. at 10,510). 

The Second Circuit's decision in Blondin v. Dubois, 238

F.3d 153 (2d Cir. 2001), does not help Elizabeth. That decision

was based on a diagnosis that the children's post-traumatic stress

disorder would recur if they were returned to their home country,

id. at 160-61, not the relative availability of resources in each

country. The court expressly rejected the argument, made here by

Elizabeth, that the grave risk exception prevents "return to a home

where money is in short supply, or where educational or other

opportunities are more limited than in the requested State." Id. 7

at 162 (quoting 51 Fed. Reg. at 10,510). 
The district court made these findings having credited 8

all of Elizabeth's testimony. But the court noted that both

Elizabeth and Savvas lacked credibility in certain respects. The

record also reflects that Elizabeth did not consider herself a

victim of domestic abuse while in Cyprus and that she did not seek

protection under Cyprus's domestic abuse laws. We do not enter the

parties' dispute over the effectiveness of such laws.

There were inconsistencies between Elizabeth's testimony 9

about her treatment by Savvas and her characterizations of him in

an email dated March 8, 2010, an email Elizabeth testified was a

mere exercise suggested by a marriage counselor they saw in Cyprus.

Among other things in the e-mail, she said to him, "You treat me

-13-

 B. Spousal Abuse

The relevant inquiry is not whether there would be a

grave risk of harm to Elizabeth if she returned to Cyprus; rather,

the grave risk inquiry goes to the children. See Abbott, 130 S.

Ct. at 1997 (noting that if respondent could demonstrate returning

child to home country "would put her own safety at grave risk, the

court could consider whether this is sufficient to show that the

child too would suffer 'psychological harm'"); Walsh, 221 F.3d at

220. Elizabeth failed to draw a connection establishing, by clear

and convincing evidence, that any risk to her constituted a grave

risk to the children. 

The district court found that "Elizabeth was subjected to

some verbal and emotional abuse and that there was one incident of

physical abuse" which "did not require any medical treatment."8

The court further determined that "the record does not reflect that

N.C. and A.C. have witnessed their father being abusive toward

their mother." In light of these findings, the court reasoned it 9
very well," and "I can feel safe with you," and "I know you will

never hurt me." She also said, "Whenever I ask for help, you are

always there for me." As to the children and their father she

said, "You are wonderfully connected to your children and you are

very involved in their lives and upbringing," and "You are such a

gentle and kind and loving father." 

-14-

could not conclude "the Children would suffer from psychological

harm or be placed in an intolerable situation based on spousal

abuse if they are returned." 

Elizabeth argues the district court's findings are

clearly erroneous. We disagree. The record supports the district

court's conclusion that there was only one act of physical abuse,

an incident in April 2010 in which Savvas braced Elizabeth against

a wall during an argument and held his hand next to her face.

Elizabeth does not specify any other incidents that the district

court overlooked. The record also supports the district court's

conclusion that neither N.C. nor A.C. witnessed any act of physical

abuse, which further suggests the lack of grave risk to the

children. Further, Elizabeth has avowed not to return to Cyprus

due to her subjective personal fears; if she does not return that

removes any risk of the children witnessing any future abusive acts

in Cyprus. 

 In view of the district court's well supported findings,

there is no grave risk to the children under Article 13(b)

associated with any potential future abuse of their mother. Cf.

Walsh, 221 F.3d at 209-12; see also Whallon, 230 F.3d at 460
Elizabeth admitted that in fact her relationship with 10

N.C. in Cyprus was not as close as Savvas's relationship with N.C.

-15-

("[A]llegations of verbal abuse and an incident of physical shoving

are distinct from the 'clear and long history of spousal abuse'

presented in Walsh."). 

Finally, Elizabeth argues that the district court failed

to consider the impact that returning the children to Cyprus

without their mother would have on them, given her stated choice to

remain in the United States regardless. She focuses on evidence of

the "extraordinary attachment" between the children and their

mother. 

The district court supportably found that Elizabeth's

stated refusal to return to Cyprus was based upon "her subjective

perception of a threat" that was "not corroborated by other

evidence in the record." Charalambous, 2010 WL 4115495, at *11.

Regardless, the court weighed the consequences of Elizabeth

choosing not to return to Cyprus, and concluded that "the

alternative of allowing these children to remain wrongfully

retained in this country is equally likely to traumatize the

children." Id. at *12. Elizabeth offers no argument on appeal 10

as to why that is not so. The district court correctly concluded

that "the impact of any loss of contact with the Mother is

something that must be resolved by the courts of the Children's

habitual residence." Id.; see also Abbott, 130 S. Ct. at 1995. We
-16-

point out that Elizabeth is free, in the courts of Cyprus, to seek

custody of the children and such other orders as may become

necessary as to the children.

III.

We affirm the judgment entered by the district court on

October 12, 2010. We find no error in the district court's

Findings of Fact and Conclusions of Law, and we approve all aspects

of the district court's orders pertaining to removal. 

The respondent is ordered to return N.C. and A.C. to the

petitioner no later than 12:00 p.m. on Thursday, December 9, 2010.

The interim conditions imposed by the district court's November 15,

2010 Order remain in place until the children are removed from the

United States. We return jurisdiction to the district court for

any necessary enforcement orders. 

Mandate to issue forthwith. 

So ordered.