United States Court of Appeals

For the First Circuit

No. 00-2041

RICHARD CHARLES WHALLON, JR.,

Petitioner, Appellee

v.

DIANA LYNN,

Respondent, Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

 

Before

Lynch, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

 

Barry S. Pollack, with whom Dechert Price & Rhoads, Todd

& Weld, Elaine M. Epstein, Gary O. Todd, and Charlene A.

Caldeira were on brief for appellant.
2

Mary A. Azzarito, with whom Tucker and Cinquegrana,

Stephen J. Cullen, and Miles & Stockbridge were on brief for

appellee.

 

October 27, 2000

 
1 The Hague Convention is implemented by the International

Child Abduction Remedies Act ("ICARA"). See 42 U.S.C. § 11601 et

seq.

LYNCH, Circuit Judge. In May 2000, Richard Charles

Whallon, Jr. petitioned for the return of his five-year-old daughter,

Micheli Lynn Whallon King, to Mexico pursuant to the Hague Convention

on the Civil Aspects of International Child Abduction. See Hague

Convention on the Civil Aspects of International Child Abduction,

T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980).1 Micheli had been taken

by her mother, Diana Lynn, from Mexico, where all three had lived, to

Massachusetts. Lynn says that she was entitled to do so, inter alia,

because Whallon never had the type of "rights of custody" as to

Micheli that are protected by the Convention. The parties agree that

this in turn requires an inquiry into what rights under Mexican law

an unmarried parent (here Whallon) has under the doctrine "patria

potestas," a doctrine with ancient roots in Roman law.

We conclude that Whallon has established that he has

protectable rights of custody under the Convention, that he did not

acquiesce in Micheli's removal, and that Micheli does not fall within

the exception to the Convention for situations where there is a grave

risk that the child's return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable

situation. We affirm the district court's order that Micheli must be

returned to Mexico, her country of habitual residence. If Whallon
4

and Lynn then wish to dispute who has what custody over Micheli or

where Micheli should live, those disputes may be heard in the Mexican

courts.

I.

Micheli was born in Mexico on July 4, 1995. Micheli's

parents, Diana Lynn and Richard Charles Whallon, Jr., both American

citizens, never married, and they separated towards the end of 1995. 

Micheli lived with her mother and her half-sister Leah in Cabo San

Lucas, Baja California Sur, Mexico. Following the separation,

Whallon continued to spend time with Micheli. At no time did Whallon

and Lynn enter into a formal custody agreement; neither has sought a

custody determination as to his or her own status.

Lynn alleged that Whallon performed only a limited

parental role and provided only sporadic child support during the

last two years all three of them were in Mexico. Additionally, Lynn

accused Whallon of subjecting her and Leah to significant verbal

abuse and of allowing matters to escalate to physical violence

against Lynn herself. Lynn made no such claim that Whallon acted

that way towards Micheli. 

In fact, the record reflects that Whallon was

significantly involved in his daughter Micheli's life. From the time

of Micheli's birth, Whallon saw her on an almost daily basis. And

from the time Micheli was three years old, she spent every other
5

weekend, overnights, with Whallon. Indeed, in August 1997, Whallon

moved to within one hundred yards of where Lynn and Micheli lived to

be closer to Micheli. Whallon also paid Lynn at least $500 of child

support for Micheli each month, money that was used to pay for dental

and medical work for Micheli. Whallon did the types of things that

one generally expects an attentive and mindful parent to do: driving

Micheli to and from nursery school every day for almost two years;

buying Micheli clothes; helping her with homework and art projects;

attending various school activities; and taking Micheli to the doctor

when she was sick. Additionally, Whallon took Micheli -- with Lynn's

approval -- to San Diego for medical and dental appointments and to

Arizona in 1998 to meet Micheli's paternal grandfather.

In late September 1999, Whallon learned that Lynn was

planning to take Micheli with her to Texas to visit Lynn's parents. 

Whallon filed a petition in the court of the State of Baja California

Sur in Mexico to permanently deprive Lynn of all custody rights over

Micheli and to grant him all such rights. The Mexican court

eventually denied the petition in April 2000, concluding that Whallon

had failed to establish the imminent danger, absolute abandonment, or

sort of corruption or mistreatment required to terminate a mother's

custody of a child under seven years of age. In the interim,

Whallon's attorney attempted to block the departure of Lynn, Micheli,

and Leah. As a result, there was an ugly incident in which Lynn and
6

the two children were held at gunpoint at the airport until a highlevel official enabled Lynn and her daughters to leave. Whallon,

however, denies ever having instructed his attorney to order gunmen

to prevent their departure or having any prior knowledge that the

gunmen had been hired. On October 1, 1999, Lynn took Micheli and

Leah with her to the United States. Whallon then petitioned the

district court in Massachusetts for Micheli's return to Mexico.

II.

Following a two-day evidentiary hearing, the district

court granted the petition and then denied respondent Diana Lynn's

motion for a stay pending appeal. The district court reasoned that

under the Hague Convention Lynn had physical custody over Micheli but

that Whallon also exercised "rights of custody" over Micheli within

the meaning of the Convention. Specifically, the court found that

Whallon exercised patria potestas rights, a concept of parental

custody rights distinct from physical custody rights on the one hand

and mere visitation rights on the other. Accordingly, it concluded

that Lynn's removal of Micheli violated Whallon's actual exercise of

rights of custody under Mexican law, and was thus wrongful under the

Convention. 

The district court also determined that Lynn did not

qualify for the exception to the Convention's return requirement that
7

applies where there is a grave risk that the child's return would

expose her to physical or psychological harm or otherwise place her

in an intolerable situation. The district court considered the

alleged pattern of verbal abuse against Lynn and Leah. It also took

account of the alleged pattern of physical abuse against Lynn

herself, including an altercation in January 1999 in which Whallon

allegedly pushed Lynn as she was departing with Micheli and then

threw a rock in the direction of Lynn's car. Additionally, the court

considered the substantially more serious and violent incident in

which armed gunmen waylaid Lynn and her two daughters while they were

en route to the airport. Although the district court found these

incidents regrettable, it noted that none was directed at Micheli and

concluded that they did not amount to the kind of grave risk of

physical or psychological harm required to trigger the exception. 

The court also found no risk that Whallon would disregard the order

of a court, whether Mexican or American.

On September 15, 2000, this court granted a stay of the

district court's order, required that Whallon have reasonable access

rights to Micheli, and ordered an expedited appeal.

III.

Lynn makes a number of arguments, and we outline the

essence of them. First, she argues that her removal of Micheli was

not wrongful under the Convention because Whallon did not establish
8

that he possessed any rights of custody under Mexican law, and the

district court wrongly placed the burden on her to disprove he had

any such rights. Second, Lynn contends that the district court

failed to make the necessary factual findings in considering the

exception to the return provisions of the Convention where such

return would subject a child to a grave risk of physical or

psychological harm, or otherwise place the child in an intolerable

situation. Finally, Lynn maintains that the district court erred in

failing to recognize the existence of an affirmative defense under

the Convention where the party seeking return (Whallon) had

previously acquiesced in the removal.

We review the district court's factual findings for clear

error and its interpretation of the Convention de novo. See Walsh v.

Walsh, 221 F.3d 204, 218 (1st Cir. 2000); Friedrich v. Friedrich, 78

F.3d 1060, 1064 (6th Cir. 1996).

A. Wrongful Removal

The Hague Convention seeks "to protect children

internationally from the harmful effects of their wrongful removal or

retention and to establish procedures to ensure their prompt return

to the State of their habitual residence, as well as to secure

protection for rights of access." Hague Convention, preamble, 19

I.L.M. at 1501. Under Article 3 of the Convention, the removal or
2 Whallon alleged only wrongful removal, and not wrongful

retention.

9

retention of a child is wrongful if:

(a) it is in breach of rights of custody attributed to a

person, an institution or any other body, either jointly

or alone, under the law of the State in which the child

was habitually resident immediately before the removal or

retention; and

(b) at the time of removal or retention those rights were

actually exercised, either jointly or alone, or would have

been so exercised but for the removal or retention.

Id. art. 3, 19 I.L.M. at 1501.2 The petitioner bears the burden of

proving "wrongful removal" by a preponderance of the evidence. 42

U.S.C. § 11603(e)(1). If the petitioner demonstrates that the child

was wrongfully removed, the court must order the child's return to

the country of habitual residence unless the respondent demonstrates

that one of four narrow exceptions applies. Id. § 11601(a)(4). 

Micheli's place of habitual residence at the time of her

removal was Cabo San Lucas, Mexico and she was indeed removed by

Lynn, facts agreed on by all. The central issues are whether Whallon

has "rights of custody" over Micheli under the Convention and, if so,

whether he was actually exercising those rights prior to her removal. 

The parties agree that our determination of Whallon's rights of

custody rests, as it must, on our understanding of relevant Mexican

law, the principles underlying the Hague Convention, and the record

in this case. Whether Whallon has the requisite custodial rights is
3 While the Hague Convention provides remedies for a

violation of access rights, see id., art. 21, 19 I.L.M. at 1503, such

remedies do not include an order of return to the place of habitual

residence. Rather, such remedies include, inter alia, ordering that

the custodial parent who removed the child from the child's habitual

residence reimburse the other parent for expenses incurred in

exercising his or her rights of access. Id. art. 26, 19 I.L.M. at

1503-04.

4 This provision was deliberately left vague due to the

drafters' failure to agree on a more precise definition. See Elisa

Perez-Vera, Explanatory Report: Hague Conference on Private

International Law ¶ 84, in 3 Acts and Documents of the Fourteenth

Session 426, 451-52 ("Explanatory Report") ("[S]ince all efforts to

define custody rights in regard to [particular situations] failed,

one has to rest content with the general description given [in the

text]."). States, however, might wish to take the principles of the

10

an issue of law.

1. Whether Whallon has Rights of Custody under the Convention

The Hague Convention states that rights of custody "shall

include rights relating to the care of the person of the child and,

in particular, the right to determine the child's place of residence

. . . ." Hague Convention, art. 5(a), 19 I.L.M. at 1501. The

Convention then contrasts "rights of custody" with the far more

limited "rights of access," which include "the right to take a child

for a limited period of time to a place other than the child's

habitual residence." Id. art. 5(b), 19 I.L.M. at 1501. It reserves

the remedy of return solely for violations of rights of custody.3 

While the Hague Convention itself provides no further

definition of the term "rights of custody," and deliberately so,4
Convention into account when redrafting national legislation on

custody matters. See Paul R. Beaumont & Peter E. McEleavy, The Hague

Convention on International Child Abduction 49 (1999).

5 Elisa Perez-Vera served as "the official Hague Conference

reporter for the Convention," and her explanatory report "is

recognized by the Conference as the official history of and

commentary on the Convention and is a source of background on the

meaning of the provisions of the Convention." See Hague

International Child Abduction Convention; Text and Legal Analysis, 51

Fed. Reg. 10494, 10503 (1986); accord Shalit v. Coppe, 182 F.3d 1124,

1127-28 (9th Cir. 1999). "Because a treaty ratified by the United

States is not only the law of this land. . . . but also an agreement

among sovereign powers, we have traditionally considered as aids to

its interpretation the negotiating and drafting history (travaux

preparatoires) and the postratification understanding of the

contracting parties." Zicherman v. Korean Air Lines Co., 516 U.S.

217, 226 (1996).

11

courts have commonly looked to the background report of the

Convention for further guidance. See, e.g., Walsh, 221 F.3d at 217. 

That report states that "the law of the child's habitual residence is

invoked in the widest possible sense," and that the sources from

which custody rights derive are "all those upon which a claim can be

based within the context of the legal system concerned." Explanatory

Report, ¶ 67, at 446.5 The Report also states that the Convention

favors "a flexible interpretation of the terms used, which allows the

greatest possible number of cases to be brought into consideration." 

Id.

Two important and closely related principles underlying

the Hague Convention also inform our approach here. First, a court

deciding a petition for return of a child plainly has jurisdiction to
12

decide the merits of a wrongful removal claim, but it may not decide

the merits of the underlying custody dispute. See Hague Convention,

art. 19, 19 I.L.M. at 1503 ("A decision under this Convention

concerning the return of the child shall not be taken to be a

determination on the merits of any custody issue."); 42 U.S.C. §

11601(b)(4). Second, the Convention is generally intended to restore

the pre-removal status quo and discourage a parent from crossing

international borders in search of a more sympathetic forum. See

Walsh, 221 F.3d at 218-19; Blondin v. Dubois, 189 F.3d 240, 246 (2d

Cir. 1999); Friedrich, 78 F.3d at 1064. As the Explanatory Report

instructs:

[F]rom the Convention's standpoint, the removal of a child

by one of the joint holders without the consent of the

other, is . . . wrongful, and this wrongfulness derives in

this particular case, not from some action in breach of a

particular law, but from the fact that such action has

disregarded the rights of the other parent which are also

protected by law, and has interfered with their normal

exercise. The Convention's true nature is revealed most

clearly in these situations: it is not concerned with

establishing the person to whom custody of the child will

belong at some point in the future, nor with the

situations in which it may prove necessary to modify a

decision awarding joint custody on the basis of facts

which have subsequently changed. It seeks, more simply,

to prevent a later decision on the matter being influenced

by a change of circumstances brought about through

unilateral action by one of the parties.

Explanatory Report ¶ 71, at 447-48. 

Thus, to assess whether Whallon possesses "rights of

custody" under Article 5 of the Convention, the court must not simply
6 The parties agree that Mexican choice of law rules require

that Mexico apply the law of the State in which the child was

habitually resident immediately prior to the child's removal, i.e.,

the law of Baja California Sur. Cf. Shalit, 182 F.3d at 1128-29

(stating that Hague Convention's references to the "'law of the State

in which the child was habitually resident'" includes "the conflict

of law rules of [that State]"). While the parties hotly contest the

nature of rights of custody under the law of Baja California Sur,

they do not dispute that law's applicability to this case under

Mexico's choice of law rules. 

13

look to the relevant provisions of Mexican law but also must

interpret those provisions in light of the Convention's basic

principle that a child's country of habitual residence is best placed

to decide upon questions of custody and access, unless an exception

applies. Id. ¶ 34, at 434-35.

The law of the State of Baja California Sur, the place of

Micheli's habitual residence, is the relevant source of law here. 

See Hague Convention, art. 3, 19 I.L.M. at 1501.6 That poses its own

difficulties for a court of the United States, a court which comes

from a different legal tradition. Care must be taken to avoid

imposing American legal concepts onto another legal culture. 

Differently from many laws in this country, Mexican law appears to

embody two concepts of importance here. The first is a preference in

divorce cases toward placing what is called "custody" of a child

under age seven with the mother. That preference is negated in

"exceptional cases" such as those involving "serious and contagious

illness, vice, mistreatment or desertion." Codigo Civil del Estado
7 Patria potestas is a concept derived from Roman law and

originally meant paternal power. It referred to a father's "near

absolute right to his children, whom he viewed as chattel," a right

with which courts were powerless to interfere. Kathryn L. Mercer, A

Content Analysis of Judicial Decision-Making: How Judges Use the

Primary Caretaker Standard to Make a Custody Determination, 5 Wm. &

Mary J. Women & L. 1, 14 (1998); see also Black's Law Dictionary 1188

(7th ed. 1999) (defining patria potestas as "[t]he authority held by

the male head of a family over his children and further descendants

in the male line, unless emancipated," initially including "the power

of life and death"). In contrast, the Roman legal tradition did not

provide wives with rights of parental authority. See Sibylla Flugge,

The History of Fathers' Rights and Mothers' Duty of Care, 3 Cardozo

Women's L.J. 377, 383 (1996). 

In the Anglo-American legal tradition, the doctrine of patria

potestas was eroded by the emergence in the seventeenth century of

the conflicting doctrine of parens patriae, which recognized the

state's interest in and responsibility for children. See Mercer, A

Content Analysis of Judicial Decision-Making, supra, at 14-15. 

"Courts, as a second stakeholder, began to intervene in custody

matters to protect the welfare of the child," and became the "final

arbiter of familial disputes" in the American colonies. Id. at 15. 

In the early nineteenth century, American courts began to award

custody in accordance with the judicially determined best interests

14

de Baja California Sur ("Civil Code"), art. 322. The preference is

embodied in the Civil Code, and while it applies specifically to

divorces (and there has been no divorce here since there was never a

marriage), the Mexican court looked to this provision in informing

its decision about whether to terminate Lynn's custodial rights. And

so we find that maternal preference, as well as the Code's use of the

term "custody," relevant to our determination of whether Whallon has

rights of custody under the Convention.

The second concept is embodied in the doctrine of patria

potestas,7 and represents a more generalized concept of parental
of the child. In practice, however, this rejection of the paternal

preference embodied in the patria potestas doctrine merely paved the

way for the emergence of the maternal preference embodied in the

tender years doctrine, which provided that a mother, unless shown to

be unfit, deserved custody of young children in light of her unique

maternal bond to her children. See Amy D. Ronner, Women who Dance on

the Professional Track: Custody and the Red Shoes, 23 Harv. Women's

L.J. 173 (2000).

However, patria potestas appears to have followed a somewhat

different path of development in legal traditions based on civil

codes. Cf., e.g., Flugge, The History of Fathers' Rights, supra, at

383 (discussing influence of patria potestas on Germany's code

established in the nineteenth century). Other Latin American

countries with civil code traditions appear to recognize some form of

patria potestas rights. See Pesin v. Rodriguez, 77 F. Supp. 2d 1277,

1286 (S.D. Fla. 1999) (noting, in Hague Convention case, that under

Venezuela's code father and mother "'are vested with the parental

authority until a judicial decision establishes otherwise'" and that

"father and mother who exercise parental authority have custody of

their children . . . shall elect by mutual consent their place of

domicile, residence or domicile [sic]"; finding that mother's removal

of child breached father's rights of custody under the Convention). 

This case highlights the difficulties in imposing Anglo-American

definitions of custody on legal systems, like Mexico's, that have

different origins and traditions. Baja California Sur's code

suggests the continuing resilience of patria potestas rights (albeit

in a diluted form) under Mexican law, despite the presumption that

physical custody of children under age seven be awarded to the

mother, at least in cases of divorce. 

15

authority. Although historically the doctrine protected the father's

rights as to the child, originally absolute rights under Roman law,

the Baja California Sur Civil Code refers to it as encompassing the

rights of both parents. Article 474 provides generally that patria

potestas, or parental authority, "is understood to mean the

relationship of rights and obligations that are held reciprocally, on

the one hand, by the father and the mother or in some cases the
16

grandparents and, on the other hand, the minor children who are not

emancipated." Civil Code, art. 474. The concept of patria potestas

is defined broadly:

Paternal authority is exercised over the person and the

property of the children subject to it. The purpose of

its exercise is the comprehensive physical, mental, moral

and social protection of the minor child, and it includes

the obligation for [the child's] guardianship and

education.

Id. art. 479. Additionally, those exercising patria potestas "have

the obligation to comport themselves in a manner that sets a good

example for the children and shall teach them appropriate standards

of social interaction." Id. art. 486.

The Civil Code explicitly discusses patria potestas rights

in situations where, as here, the parents of a child born outside of

wedlock separate. It provides that in such situations, "both

[parents] shall continue to exercise paternal authority." See id.

art. 478 (emphasis added). The Code then distinguishes patria

potestas from "custody," which may be decided by agreement or,

failing such agreement, by a judge. Id. Indeed, the existence of

divisible custody rights under Mexican law -- i.e., of physical

custody and patria potestas – is entirely consistent with the Hague

Convention's statement that custody may be held "jointly or alone." 

Hague Convention, art. 3, 19 I.L.M. at 1501; Explanatory Report ¶ 71,

at 447-48 (characterizing joint custody as "dividing the
8 The Convention allows the party seeking the return of the

child to request that the central authority of a contracting State

provide an explanation of its law. See Hague Convention, art. 15, 19

I.L.M. at 1503. Here, Whallon put into evidence a letter from the

Mexican Central Authority for Child Abduction to the National Center

for Missing and Exploited Children. Although the letter contains

significant factual mistakes -- for example, it incorrectly refers to

Lynn, an American citizen, as a German citizen -- it nevertheless

states that "patria potestas (custody) will be exercised by both

parents" under Baja California Sur's Civil Code. The letter,

however, takes no position as to whether patria potestas rights

amount to custody rights under the Convention, nor does it reveal

what question had been put to the Mexican Central Authority. We give

it little weight as a result.

17

responsibilities inherent in custody rights between both parents");

see also Croll v. Croll, No. 99-9341, 2000 WL 1357742, at *6 (2d Cir.

Sept. 20, 2000) ("rights of custody" under Convention "references a

bundle of rights exercised by one or more persons having custody").8

Lynn says that Whallon's patria potestas rights are closer

to what the Convention means by "rights of access" than to what it

means by "rights of custody." We disagree. Article 329 of the Civil

Code states that "[i]ndependently of who exercises patria potestas or

custody, the relatives obliged by law to provide support have the

right to visit their descendants or collateral relatives, and to have

an adequate communication with them." Civil Code, art. 329. Thus,

patria potestas, like physical custody, plainly means something

"independent" from mere visitation rights. Importantly, the Code

describes these visitation rights in terms of "adequate

communication," id., but describes patria potestas rights through the
9 Lynn also relies on the Second Circuit's recent decision

in Croll, supra, where the court held that the mother was not

required to return the child to Hong Kong because she did not violate

the father's rights of custody under the Convention. In contrast to

the situation here, in Croll there had been a clear determination of

custody rights by a court of the country of habitual residence

awarding sole custody to the mother and granting only rights of

access to the father. Id. at *1. Moreover, while the custody order

in Croll contained a ne exeat clause prohibiting the child's removal

from Hong Kong until she attained the age of eighteen years without

leave of court or consent of the other parent, such clause

represented only a negative right or veto, see id. *7, as opposed to

the affirmative grant of custody rights to Whallon under Mexican law

and the ample evidence of Whallon's actual exercise of those rights.

18

stronger language of "adequate connection," id. art. 323, which

implies a meaningful, decisionmaking role in the life and care of the

child, and not the mere access to the child associated with

visitation rights.9

Additionally, Whallon submitted into evidence the

affidavit of Mexican attorney Omar Quijano Martinez further

corroborating that both parents exercise patria potestas rights over

a child under Mexican law and stating that both parents must consent

to the removal of such child under Mexican law. Such affidavits are

an acceptable form of proof in determining issues of foreign law, see

Rule 44.1, Fed. R. Civ. P., and are likewise permitted under the

Hague Convention, see Explanatory Report ¶ 101, at 456-57 ("proof of

the substantive law of the State of the child's habitual residence

may be established by either certificates or affidavits").

Lynn also relies heavily on the decision of the Mexican
10 Lynn's reliance on Shalit v. Coppe, supra, is misplaced. 

In Shalit, a wrongful retention case, the mother kept the child in

Alaska after the child had come to visit her on a two-week vacation,

despite an oral agreement -- never approved by any court -- that the

child would live temporarily with the father in Israel. Shalit, 182

F.3d at 1126. The Ninth Circuit affirmed the district court's

decision denying the father's return petition. The court relied on

the determination of an Alaska state court that predated the oral

agreement and that granted the mother sole legal and physical

custody. Id. at 1130-31. Here, by contrast, there has been no such

judicial determination of custody. Moreover, the law of Baja

California Sur demonstrates the existence of rights of custody in

Whallon.

19

court rejecting Whallon's petition to terminate her parental rights. 

That decision, however, has limited relevance to this action. At

issue in the Mexican court action was whether Whallon had

demonstrated the necessary exceptional circumstances to terminate

Lynn's custodial rights. Although the Mexican court concluded that

Whallon had not met his heavy burden, it never stated or even

suggested that Whallon lacked custody rights or otherwise determined

what those custody rights were. Whether or not a Mexican court

ultimately decides the matter of custody differently following

Micheli's return to Mexico, Whallon did possess rights of custody

under the law of Micheli's habitual residence at the time of her

removal.10

Finally, Lynn contends that the district court, though

acknowledging at trial that Whallon had the burden of proof to

establish a wrongful removal, failed to acknowledge that burden in

its written opinion and failed to impose that burden on Whallon in
20

its analysis. This argument fails. The district court approached

the issue of wrongful removal by first considering Whallon's

arguments regarding patria potestas rights under Mexican law. After

closely analyzing the relevant provision of Baja California Sur's

Civil Code and Lynn's counter-arguments, the court concluded that

there had been a wrongful removal. It acknowledged that Whallon had

the burden of proof on this issue, weighed the burden in light of the

law and evidence presented, and found that the burden had been

satisfied. 

In sum, the evidence of patria potestas rights under

Mexican law leads us to conclude that Whallon's rights were "rights

of custody" under the Convention. While Lynn had actual custody of

Micheli, both parents exercised patria potestas rights over Micheli. 

Indeed, to date no Mexican court has given Lynn exclusive custody or

denied Whallon patria potestas rights over Micheli. The pending

Massachusetts custody proceedings commenced by Lynn after her removal

of Micheli are inapplicable to this action because the Convention

refers specifically to (Whallon's) rights of custody at "the time of

removal." Hague Convention, art. 3(b), 19 I.L.M. at 1501; see also

Beaumont & McEleavy, Hague Convention, at 53 (subsequently rendered

custody orders inapplicable to return proceedings).

2. Whether Whallon Actually Exercised Rights of Custody
21

Lynn argues that Whallon was not "actually exercising" his

rights of custody over Micheli at the time of her removal by Lynn, as

required by the Convention. See Hague Convention, art. 3(b). Here,

there is no question that Whallon was actually exercising his rights

of custody prior to Micheli's removal, as the description of the

facts of this case makes amply clear. Accordingly, Lynn's removal of

custody violated Whallon's rights of custody under the Convention.

B. Exception for Grave Risk of Physical or Psychological Harm

Lynn argues that Micheli should still not be returned to

Mexico because she falls within the exception to return contained in

article 13(b) of the Convention.

The wrongful taking of a child from his or her country of

habitual residence normally requires the child's return. See Hague

Convention, art. 12, 19 I.L.M. at 1502. Courts, however, are "not

bound to order the return of the child if the person, institution or

other body which opposes its return 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." Id. art. 13(b), 19 I.L.M. at 1502. A respondent who

opposes the return of the child by asserting the article 13(b)

exception has the burden of proving this exception by clear and

convincing evidence. See 42 U.S.C. § 11603(e)(2)(A); Walsh, 221 F.3d
22

at 217. The article 13(b) exception is a narrow one. See 42 U.S.C.

§ 11603(a)(4); Walsh, 221 F.3d at 217. 

To meet her burden under the article 13(b) exception, the

respondent must establish that the alleged physical or psychological

harm is "a great deal more than minimal." Walsh, 221 F.3d at 218. 

Indeed, the harm must be "something greater than would normally be

expected on taking a child away from one parent and passing him [or

her] to another." Id. (internal quotation marks omitted). Courts

are not to engage in a custody determination or to address such

questions as who would be the better parent in the long run. Id.

We previously addressed this exception to the Convention

in Walsh, supra. In Walsh, we reversed the decision of the district

court and held that the respondent wife had demonstrated by clear and

convincing evidence that the return of her children to Ireland posed

a grave risk of physical and psychological harm. See id. at 219-21. 

In Walsh, the husband had severely beaten his wife over the years,

including when she was pregnant. Many of the beatings took place in

front of her two small children, as did a beating of his older son by

another marriage. The husband fled this country when charged with

threatening to kill another (a neighbor), refused to return when a

fugitive warrant was entered, and violated Irish court orders that he

stay away from the marital residence. Id. at 209-12. We found that

the district court "inappropriately discounted the grave risk of
23

physical and psychological harm to children in cases of spousal

abuse; . . . failed to credit [the petitioner father's] more

generalized pattern of violence, including violence directed at his

own children; and . . . gave insufficient weight to [the petitioner

father's] chronic disobedience of court orders." Id. at 219. Such a

high quantum of risked harm barred the child's return under article

13(b). Id.

Here, by contrast, the district court found that the

alleged instances of verbal abuse of Lynn and her older daughter

Leah, and of physical abuse of Lynn, while regrettable, neither were

directed at Micheli nor rose to the level of the conduct of the

petitioner father in Walsh. We agree. Lynn's allegations of

verbal abuse and an incident of physical shoving are distinct from

the "clear and long history of spousal abuse" presented in Walsh. 

Id. at 220. Lynn has never alleged that Whallon abused Micheli,

either physically or psychologically. Indeed, while the two experts

who testified disagreed as to whether returning Micheli to Mexico

would expose her to a grave risk of physical or psychological harm or

otherwise place her in an intolerable situation, they both agreed as

to the love that Whallon and Micheli have for each other as father

and daughter. As to the deplorable attempt to keep Lynn and Micheli

in Mexico at gunpoint, the district court found credible Whallon's

denial that he ever instructed his attorney to hire the gunmen or
11 Furthermore, the cases on which Lynn relies for this

argument involved the bonds between a child and her mother, not her

sibling. See, e.g., Steffen F. v. Severina P., 966 F. Supp. 922, 928

24

knew that the gunmen had been hired. Furthermore, in contrast to

Walsh, there is no evidence that Whallon would disregard an order of

the court, whether Mexican or American.

 Lynn argues that the district court ignored the

psychological harm prong of article 13(b). That is not so. The

court considered the alleged psychological harm to Micheli from the

abuse and correctly found that any such harm did not to rise to the

level required for sustaining an article 13(b) exception. See Walsh,

221 F.3d at 218-19. Lynn also contends that the district court

ignored the harm resulting from the separation of Micheli from her

half-sister Leah. Whether there is a separation is Lynn's choice. 

She may return to Mexico with both her daughters. We do not doubt

that a separation, if any, would cause difficulty. The logic,

purpose, and text of the Convention all mean that such harms are not

per se the type of psychological harm contemplated by the narrow

exception under article 13(b). To conclude otherwise would risk

substituting a best interest of the child analysis for the analysis

the Convention requires. This would undercut the Convention's

presumption of return where rights of custody have been violated by

wrongfully removing a child in situations where that child had a

sibling who was not wrongfully removed.11
(D. Ariz. 1997).

12 The district court's opinion did not explicitly address

this issue.

25

C. Failure to Recognize "Acquiescence" Defense

Lynn argues that the district court erred in ignoring her

other affirmative defense that Whallon had previously acquiesced in

Micheli's removal to the United States. See Hague Convention, art.

13(a), 19 I.L.M. at 1502 (return not required where person opposing

return establishes that "the person . . . having the care of the

person of the child . . . had consented to or subsequently acquiesced

in the removal").12 While Whallon does not literally come within

these terms as the one "having care of the person or child," we

assume arguendo that Lynn may make an acquiescence argument, at least

in terms of whether the removal was in fact wrongful. Lynn must

prove acquiescence by a preponderance of the evidence. 42 U.S.C. §

11603(e)(2)(B). Lynn argues that she repeatedly told Whallon that

she would eventually be taking Micheli to the United States for her

education but that Whallon failed to institute any formal custody

proceedings in Mexico until after he had learned that Lynn was

planning to remove Micheli. Lynn also points to a note written by

Whallon sometime in 1997 in which Whallon purportedly acknowledged

that Lynn could relocate with Micheli to the United States as along

as Micheli flew back to Mexico during a few holidays each year.
13 In contrast, cases where courts have granted this

affirmative defense have all involved clear instances of wavier by

the party seeking the child's return. Cf. Journe v. Journe, 911 F.

Supp. 43, 47-48 (D.P.R. 1995) (voluntary dismissal of underlying

action for divorce and custody of children); In re Ponath, 829 F.

Supp. 363, 368 (D. Utah 1993) (petitioner failed, for almost six

months, to make any meaningful effort to obtain return of the minor

child).

26

We find no acquiescence by Whallon in Micheli's removal

here. Whallon's failure to institute formal custody proceedings does

not itself constitute acquiescence. Indeed, a similar argument may

be turned against Lynn: that her failure to seek a formal custody

declaration from the Mexican courts indicates her own acceptance of

Whallon's custody rights, including, but not limited to, the right to

determine Micheli's place of residence. The 1997 handwritten note on

its face does not constitute a waiver by Whallon of his custody

rights. The argument also fails to take account of the subsequent

period during which time Whallon played an increasingly important

role in Micheli's life, and is countered by Whallon's prompt and

persistent actions seeking Micheli's return to Mexico following her

removal.13

IV.

The decision of the district court is affirmed and the 

stay entered by this court on September 15, 2000 is lifted. So

ordered.