Divorce or Annulment Now Revokes Any Revocable Disposition or Appointment of Property to a Former Spouse

Under former EPTL 5-1.4, a disposition in a will to a former spouse was revoked by a divorce or annulment unless the will expressly provides otherwise. In addition, a divorce revokes a revocable disposition of securities under the "Transfer-on-Death Security Registration Act" (see EPTL 5-1.4(c)) and, under case law, transforms a tenancy by the entirety into a tenancy in common.Under EPTL 5-1.4, a divorce revokes a will provision nominating a former spouse as executor or trustee; and under provisions of the Public Health Law, divorce revokes a Health Care Proxy given to a former Spouse (NY Public Health Law §2985) or, under recently enacted Public Health Law §4201, a former Spouse's power to dispose of a decedent's "remains." However, a divorce did not revoke many other revocable dispositions ( "testamentary substitutes"), such as lifetime revocable trusts (including Totten Trusts), life insurance policies, or joint tenancies (including joint bank accounts). A divorce did not revoke a power of attorney given to a former Spouse under provisions of the General Obligations Law. Laws of 2008, Chapter 173 repeals EPTL 5-1.4 and a new EPTL 5-1.4 is added which provides that a divorce or annulment will revoke any revocable disposition or appointment of property to a former Spouse, including a disposition or appointment by will, by beneficiary designation, or by revocable trust (including a bank account in trust form). It also revokes any revocable provision conferring a power of appointment on the former spouse and any revocable nomination of the former Spouse to serve in a fiduciary or representative capacity, such as nomination of the former Spouse as a personal representative, executor, trustee, guardian, agent, or attorney-in-fact. A divorce would sever joint tenancies between former Spouses (including joint bank accounts) and transform them into tenancies in common. According to the Sponsor’s Memorandum the new statute does not change the New York case law concerning the effect of divorce on tenancies by the entirety. (See Kahn v Kahn, 43 NY2d 203 (1977); Anello v Anello, 22 AD2d 694 (1964)).New EPTL 5-1.4 continues the rules of former EPTL 5-1.4 which provide that the provisions of the governing instrument are given effect as if the former spouse predeceased the divorced individual, and that a revoked disposition, appointment, provision or nomination is revived by the divorced individual's remarriage to the former spouse. It protects a payor, such as a bank in connection with a joint account, or a life insurance company in connection with a life insurance policy, where the payor has made a payment to a beneficiary designated in the governing instrument after the divorce has taken place, unless and until the payor has received written notice of the divorce. Even after such written notice is received, the payor can still receive protection and a complete discharge of liability by making the payment to the court.EPTL 5-1.4 is effective July 7, 2008 and applies only where the marriage of a person executing a disposition, appointment, provision or nomination in a governing instrument, as defined in EPTL 5-1.4(f)(5), to or for the benefit of a former spouse ends in a divorce or annulment, as defined in EPTL 5-1.4(f)(2), on or after such effective date or, where such a marriage ends prior to such effective date, only where such a disposition, appointment, provision or nomination takes effect only at the death of the person who executes it and such person dies on or after the effective date. Laws of 2008, Chapter 173, § 2, effective July 7, 2008.

2d Circuit Reaffirms Croll Holding That Ne Exeat Clause Does Not Create Rights of Custody and Holds That District Court May Enforce Rights of Access

In Duran v Beaumont, --- F.3d ----, 2008 WL 2780656 (2nd Cir.(N.Y.)) Appellant and Appellee, both Chilean citizens, never married. Their daughter was born on April 22, 2001, in Chile and lived with both parents until they separated in 2004. While the separated couple lived in Chile, the child lived with Appellee, and Appellant had visitation rights. Under Chilean law, Appellee could not remove the child from Chile without Appellant's permission, and Appellant refused to consent. Therefore, Appellee petitioned the Eighth Minors' Court of Santiago, and the court issued an order authorizing her to travel to the United States with the child for three months. Appellee and the child departed Chile on August 3, 2005. The travel period expired on November 3, 2005, but Appellee remained with the child in the United States, in violation of the Chilean court's order. According to a certification issued by the Eighth Minors' Court of Santiago on August 28, 2006, a final determination of sole custody for the child had not yet been determined. On July 25, 2006, Appellant filed a Petition for the Return of Child. The district court held evidentiary hearings on the Petition and found that it lacked jurisdiction to order the return of the child because Appellant did not have rights of custody under Chilean law. The primary issue before the Second Circuit was whether under the Hague Convention Appellant had custody rights as opposed to rights of access. If Appellant had custody rights, United States courts would have jurisdiction to order the return of the child. However, if Appellant merely had access rights, then United States courts were without jurisdiction to order this remedy. The Hague Convention distinguishes between rights of custody and rights of access. It defines the latter as "the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Convention, art. 5, 51 Fed.Reg. at 10,498. Although remedies exist in the event that a child is removed in breach of access rights, recourse for such removal does not include an order of return to the child's place of habitual residence. See id. art. 21, 51Fed.Reg. at 10,500. The court held that in such situations, district courts may fashion a remedy ordering the custodial parent who has removed the child to allow and financiallyprovide for periodic visits by the non-custodial parent.The Court pointed out that neither the Hague Convention nor its implementing legislation defined "habitual residence." However, it had previously articulated the standard used to determine a child's habitual residence in Gitter v Gitter, 396 F.3d at 134: “First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to [a] new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.” Applying these principles it held that the district court properly found Chile to be the child's place of habitual residence. Because both parents were Chilean citizens, their child was born in Chile and lived in Chileuntil August 2005 when Appellee took her to the United States, a settled mutualintent to make Chile the child's permanent home could be easily concluded. There wasno evidence to the contrary and no joint settled intention to abandon Chile as the habitual residence. Appellee represented to the Chilean court that the child's removal was only temporary and that she intended to return the child to Chile after three months. Therefore, Chile was the habitual place of the child's residence.Turning to the primary issue whether Appellant had rights of custody the court found that under Chilean law, when parents live separately, the responsibility for the personal care of their child rests with the mother. See Code Civil Section 225 (Chile). However, the other parent still has a ne exeat right: the right to determine whether the child will leave the country. See Minors Law 16,618 art. 49. Although Appellee was granted permission the Chilean court to leave the country with the child for three months, violation of the conditions of that order can be a violation of Appellant's ne exeat right. In interpreting the Hague Convention, the Court has held that violating a ne exeat right is insufficient to qualify as a violation of custodial rights. See Croll v Croll, 229 F.3d at 138-140. In Croll, it found that a ne exeat clause does not create rights of custody within the meaning of the Hague Convention. It explained that "custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things." It reasoned that custody under the Hague Convention "references a bundle of rights ... and is in some tension with the idea ... that one can have custody by holding a single power such as the veto conferred by a ne exeat clause." In Croll it said that although a ne exeat right limits a custodial parent's power to expatriate a child, it does not amount to a power to determine where the child will live. To hold otherwise would be "unworkable" because the Hague Convention assumes that "the remedy of return will deliver the child to a custodial parent who (by definition) will receive and care for the child. It does not contemplate return of a child to a parent whose sole right-to visit or veto-imposes no duty to give care." It agreed with the district court that Appellant did not establish the custody requirement by a preponderance of the evidence. Appellant primarily relied on an affidavit from the Chilean Central Authority as support for his argument that he hadcustodial rights under Chilean law. Appellant maintained that the district courtfailed to afford the Chilean Authority's interpretation of Chilean law appropriateweight. The issue of whether the Central Authority's affidavit constituted anauthoritative interpretation for the purposes of the Hague Convention wasinconclusive for a number of reasons, including the fact that the ChileanAuthority may not have had all information on this case available to it at thetime that it made its assessment. Even if it was authoritative, the district court was not bound to follow it. A foreign sovereign's views regarding its own laws merit, although they do not command, some degree of deference." Karaha Bodas Co.,L.L. C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 92 (2d Cir.2002). Reasons existed for the district court to refrain from giving theaffidavit absolute deference. Most importantly, the Central Authority's conclusionthat joint custody existed under Chilean law as a default rested almost exclusivelyon the ne exeat right. This veto power does not confer rights of custody.The district court looked to the rights Appellant claimed to possess in order to determine whether he had custody rights. Appellant also relied on the fact that he had visitation rights and that he paid for certain medical expenses. He pointed to Article 229 of the Chilean Civil Code which provides that a parent "who is not personally responsible for the care of a child will not be deprived of the right ... to maintain a direct and regular relationship with the child." However, this article addresses visitation rightsonly and not rights to care for the child under a custodial relationship. Appellee had the authority to make all the crucial decisions for the child. The only restrictions on Appellee's decision-making power under Chilean law was that she had to allow Appellant his scheduled visitations and she could not take the child out of the country without either Appellee's permission or a court order. The bundle of rights Appellant laid claim to did not create rights of custody under the Hague Convention and ICARA; they cumulatively amounted merely to a right of access. The Court held that under the Hague Convention, the rights conferred on Appellant did not amount to rights of custody. The removal of the child from Chile, although in violation of a lawful order from a Chilean court, did not breach rights of custody and was therefore not "wrongful" under the Hague Convention. The district court's order dismissing the petition for lack ofjurisdiction and ordering periodic visitation of the child for Appellant was affirmed.

District Court Holds Hague Convention Applies to Wrongful Retention Occurring after Peru's Initial Accession to Convention, but Prior to US Acceptance

In Viteri v Pflucker, 550 F.Supp.2d 829 (ND Ill 2008) on February 28, 2008, petitioner, Carlos Viteri, filed a Petition for Return of Child under the Hague Convention. In his petition, petitioner alleged that he and respondent, Gabriella Maria Pflucker, were the parents of the minor child, Valeria Carla Viteri Pflucker, who was born August 24, 2000, in Lima, Peru. Petitioner alleged that after the parties' relationship ended around October 2003, petitioner obtained visitation rights from the Peruvian courts. Petitioner further alleged that on September 3, 2005, respondent left Peru with the child and traveled to the United States, and did not return to Peru by the time her tourist visa expired on October 3, 2005. According to petitioner, since that time, respondent has neither returned the child to Peru, nor allowed petitioner visitation with the child. Petitioner requested the return of his daughter to Peru under the Convention so that the Peruvian courts may conduct custody proceedings. The respondent stipulated that the child's habitual residence prior to her retention of the child in the United States was Peru. Neither party addressed the issue of wrongful removal or wrongful retention. As respondent obtained a court's permission to travel with the child to the United States for 30 days, for the purposes of this motion the court referred to respondent's actions as those of wrongful retention. Peru acceded to the Convention on May 28, 2001, the Convention entered into force in Peru on August 1, 2001, and that the Convention did not enter into force between the United States and Peru until June 1, 2007. The Convention entered into force for the United States on July 1, 1988. Respondent moved to dismiss the petition for lack of subject matter jurisdiction.
Respondent argued that the Convention was not in force between the United States and Peru at the time the child was retained, and therefore, that the court did not have jurisdiction under the Convention to order the return of the child. Respondent argued this case should be dismissed for lack of jurisdiction pursuant to Rule 12(b)(1) because the Convention only applies to wrongful removals or retentions occurring after its entry into force in Contracting States and that the Convention was not in force between the United States and Peru at the time of the child's wrongful retention in this case. Respondent moved to dismiss the petition for lack of subject matter jurisdiction. Respondent argued that the Convention was not in force between the United States and Peru at the time the child was retained, and therefore, that the court did not have jurisdiction under the Convention to order the return of the child. In the court's view, respondent's motion was more appropriate pursuant to Rule 12(b)(6). Petitioner's claims arose under the Convention, and thus, both 28 U.S.C. 1331 and 42 U.S.C. 11603(a) give the court subject matter jurisdiction to adjudicate petitioner's claims. In actuality, respondent's motion did not challenge the court's power to rule but, rather, whether petitioner stated a cause of action entitling him to relief. A few district courts that have looked at similar issues have applied both Rule 12(b)(1) and Rule 12(b)(6) without much discussion. See Taveras v. Taveras, 397 F.Supp.2d 908, 910-913 (S.D.Ohio 2005); Mezo v. Elmergawi, 855 F.Supp. 59, 64 (E.D.N.Y.1994).The Court pointed out that Articles 35 and 38 of the Convention were those which were most pertinent to respondent's motion to dismiss. Article 35 states, "This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States." Article 38 states that the Convention is open to accession by non-member States, and that, "The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession." Article 38 further states that after a State's initial accession, “ The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.... The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Thus, the Convention enters into force between an acceding State and a member Contracting State only when the Contracting State accepts the acceding State's accession to the Convention. In this case, there were two primary issues. The first was whether the court should interpret Article 35 liberally to apply to actions where the wrongful removal or retention of a child occurred before the Convention was in force in a particular State, but continued after its entry into force. If the answer to the first inquiry did not allow such a liberal application, the second issue that arises is whether, in light of the language of Article 38, Article 35 applies to wrongful retentions involving Peru and the United States, which occurred after Peru's initial accession to the Convention, but prior to the United States' acceptance of Peru's accession. Initially, petitioner argued that because respondent's wrongful retention of the child had continued following both Peru's accession to the Convention and the United States' acceptance of Peru to the Convention, a liberal interpretation of Article 35 allowed the Convention to apply. Article 35 states that the Convention applies "only to wrongful removals or retentions occurring after its entry into force in those States." Thus, the language of Article 35 clearly limits wrongful removals and retentions subject to the Convention to those that occur after its entry into force. However, both the State Department's legal analysis and the explanatory report by Elisa Perez-Vera, the official Hague Conference reporter for the Convention, suggested that a more liberal interpretation of Article 35 may be appropriate. The Department of State report provides:” Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (1986) (hereinafter State Department Analysis).

Petitioner argued that the court should interpret Article 35 liberally, consistent with the comments of the State Department analysis and Perez-Vera's report, and find that because the child's wrongful retention in the United States continued after the Convention was in force between Peru and the United States, the Convention applies. Respondent argued that the term retention, as used in Article 35, is a solitary event that, in this case, occurred prior to the entry into force of the Convention between Peru and the United States. The court agreed with respondent.
The judicial authority offered by the parties supported the interpretation of "wrongful retention" as a solitary event. [See Taveras, 397 F.Supp.2d at 909; In re H.and In re S., [ (1991) ] 2 A.C. 476 (H.L.)] Moreover, aside from the language of the Convention itself, this interpretation was supported by the negotiation and drafting history of Article 35, as accounted by Perez-Vera. The court declined petitioner's invitation to liberally interpret Article 35 as allowing the Convention to apply to wrongful removals or retentions that occur prior to entry into force, but continue after the entry into force. Consequently, the court considered the static date of the alleged wrongful retention October 3, 2005, and applied Article 35 accordingly.
However, this did not end the inquiry. In this case, the child's alleged wrongful retention occurred prior to the Convention's entry into force between the countries, but following its entry into force in Peru. The Convention entered into force separately in both the United States and Peru prior to the child's removal from Peru and retention in the United States. However, because the Convention had yet to enter into force between those two countries, the issue was whether the alleged wrongful retention in this case was subject to the Convention.

Article 35 of the Convention states that the Convention applies "as between" Contracting States only to wrongful retentions occurring "after its entry into force in those States." However, the Articles of the Convention provide two separate instances at which the Convention "enters into force." In order for a State to accede to the Convention, it must submit an instrument of accession to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Convention, art. 38. Thereafter, both Articles 38 and 43 provide that the Convention shall "enter into force" on the first day of the third calendar month after the deposit of the country's instrument of accession. Convention, arts. 38, 43. However, Article 38 continues, and states that despite an acceding State's instrument of accession, the accession only has effect on the relations between States when a Contracting State declares its acceptance of the accession. Article 38 outlines the effect of accession on the relations between States, stating, The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.Because the Convention offered these two separate times at which the Convention "enters into force," the court had to determine which "entry into force" is referred to in Article 35.The Court found that the language of the Convention favored petitioner's position. Article 35 states that the Convention applies to wrongful retentions occurring "after its entry into force in those States." [See Article 35; Article 38; Article 39; Article 43;]. The drafting history favored an interpretation of Article 35 which applies the Convention to wrongful removals and retentions occurring after the Convention is in force in the State of habitual residence and in the State to which the child is removed or retained, regardless of the time of any other State's acceptance of the new State's accession. The relations between States begin with an application from one to another. Thus, although the Convention applies to a wrongful removal or retention that occurs after a State's instrument of accession is in force, an application for return related to that removal or retention will not have any effect in another Contracting State until that individual Contracting State has accepted the acceding State. After reviewing the above factors, the court found Article 35 requires only that the wrongful removal or retention at issue occur after the Convention enters into force individually in the acceding State and in the State to which the child was removed to or is retained. Accordingly, the court found that the alleged wrongful retention in this case was subject to the Convention because it occurred after the Convention entered into force in both of the relevant States in this action. As a result, respondent's motion to dismiss was denied.

Error Not to Credit Wife with 50% of Husband's Pre-marital Debts Paid with Marital Funds During the Marriage

In Mahoney-Buntzman v Buntzman, --- N.Y.S.2d ----, 2008 WL 2066586 (N.Y.A.D. 2 Dept.) Supreme Court, among other things, fixed the wife's her distributive award at $2,467,151.43, awarded her 35% of the value of certain shares of stock and stock options issued to the defendant by his employer, and awarded her durational maintenance of $2,500 a month for 15 months. During the parties' marriage, the defendant took out a student loan in the amount of $48,162.90 to pay for a doctoral degree in education, which was satisfied with marital funds. The plaintiff contended on appeal that the trial court erred in failing to award her a 50% credit with respect to the student loan. The Appellate Division agreed. The defendant's expert testified that the doctoral degree earned by the defendant during the marriage did not enhance his earnings, and thus, provided no benefit to the marriage, and there was no distributive award of the value of the doctorate degree to the plaintiff in light of its zero enhanced earning capacity value. The student loan debt was incurred to satisfy the defendant's separate interest and therefore was his own separate obligation. Accordingly, the trial court erred in failing to award the plaintiff a 50% credit, or $24,081.45, for the student loan debt incurred by the defendant during the marriage to attain this degree. The Appellate Division agreed with plaintiff's contention that the trial court erred in not crediting her with 50% of the defendant's pre-marital debts paid with marital funds during the marriage: maintenance paid to the defendant's first wife in the total amount of $58,545, and $7,000 paid in 1998 as a settlement of a loan for a boat purchased by the defendant before the marriage but surrendered to the bank in 1993 prior to the marriage for nonpayment of the boat loan. The defendant's maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties' marriage and were solely his responsibility. Accordingly, the trial court erred in failing to award the plaintiff additional credits of $29,272.50 as to the maintenance payments to the defendant's first wife and $3,500 as to the boat loan. It also agreed with the plaintiff's contention that the trial court improvidently exercised its discretion in declining to direct that the defendant pay the parties' children's college tuition and expenses until they reach the age of 21 upon finding that the children had sufficient resources of their own to pay for their college education from trust funds given to them by their paternal grandfather. In view of the defendant's own significant financial resources in contrast to the plaintiff's limited financial resources, and the defendant's own testimony that the parties agreed not to use the children's trust funds to pay for their college tuition and expenses, as well as giving due consideration to the factors listed in Domestic Relations Law s 240(1-b)(c)(7), the defendant should pay for the childrens' college tuition and expenses until they reach the age of 21.

11th Circuit Holds Once Respondent Shows Grave Risk of Harm Burden Shifts to Petitioner to Prove Undertakings Will Alleviate Risk

In Baran v Beaty, --- F.3d ----, 2008 WL 1991092 (11th Cir.(Ala.)) from October 2001 through August 2006, Gareth Baran, an Australian national, lived with Susan Beaty, a United States citizen, at their home in Australia. On March 11, 2006, Beaty gave birth to their son, Samuel, who was the subject of this petition. In October 2001, Baran sustained debilitating injuries in an automobile accident, rendering him unable to work or care for himself for some time thereafter. Beaty, a registered nurse, tended Baran and worked to support the household financially. After his accident, Baran became depressed and began drinking heavily, becoming intoxicated on an almost daily basis. It was not uncommon for Baran to drive while intoxicated or to pass out after an allday drinking binge. When drunk, Baran was violent and unstable. He berated Beaty and intimidated her physically. On occasion, he was physically abusive towards her. On one such occasion Baran slapped Beaty so hard she fell to the ground. Another time, he pushed her in the presence of his daughter, frightening and upsetting the child. On a separate occasion, while Beaty was pregnant with Samuel, Baran pinned her between a door and the wall, pushing on the door in a manner that applied intense pressure to her abdomen. On other occasions, Baran hurled furniture at Beaty and smashed the door of the couple's microwave oven in a fit of anger. After Samuel was born, Baran's alcohol abuse and anger intensified. Baran began drinking all day every day, and participated only minimally in Samuel's care and supervision. Although there were times when Baran would assist in caring for Samuel, such occasions were isolated and infrequent. Baran did not temper his abusive conduct when Samuel was present. One night when Samuel was less than a week old, Baran became intoxicated and decided he wanted to show his drinking companions "how big Sam's balls were." He took Samuel, undressed him, and carried him balanced on one hand into the night air before stumbling into a table, sending glassware flying as he did so. On July 13, 2006, Baran subjected Beaty to a six-hour, expletive-laden barrage of verbal abuse and threats while she held Samuel in her arms. On that occasion, Baran screamed to Beaty he hated her, she was never going to see Samuel or her family again, and he was going to "bash her face in." To punctuate the threat, Baran repeatedly swung a portable telephone at her head, causing Beaty to fear for her life. All the while, Beaty held Samuel and attempted to use her body to shield him. Samuel remained very quiet, but he cried out when Baran tore him from Beaty's arms and deposited him on a couch unsupervised. Despite these incidents of endangerment, there was no evidence Baran had ever beaten or otherwise physically harmed Samuel. At various times Baran told Beaty in pointed terms she had "tricked" and "trapped" him with the pregnancy, he did not want another child, Beaty should not blame him if anything happened to Samuel, and she should have had an abortion. Baran informed Beaty when the child grew older, he would tell Samuel he did not want him. On at least two occasions, in the context of disagreements concerning his family or financial matters, Baran told Beaty to return to the United States, admonishing her to take Samuel with her because Baran wanted his freedom. Based on this course of conduct, Beaty came to fear for her life and Samuel's life if they remained in Australia with Baran. Beaty felt isolated and believed none of Baran's family could provide any kind of support or intervention necessary to protect her and Samuel from Baran's explosive outbursts. Beaty never went to the Australian police or judicial system for help because she firmly believed those institutions would be unable to protect her. She never sought legal custody of Samuel from any Australian tribunal because she believed no one in Australia was capable of helping or protecting her or Samuel. On August 20 Baran came home from an errand to find a note in Beaty's handwriting reading, "Hey Babe, Went for a walk be back later. Susie & Boo Boo." ("Boo Boo" was Beaty's pet name for Samuel.) Beaty and Samuel went to the United States. Since arriving in the United States, Beaty and Samuel lived with Beaty's parents in Alabama. Beaty was adamant that she would never return to Australia under any circumstances because she feared Baran would harm her if she did. Baran has had no face-to-face contact with Beaty or Samuel since they left Australia, although he and Beaty had numerous telephone conversations. On September 21, 2006, Baran submitted to the Australian Central Authority an "Application for the Return of a Child," pursuant to the Hague Convention. The application stated Beaty had removed Samuel to the United States without Baran's consent, and requested that Samuel be returned immediately. Under the heading "proposed arrangements for return of the child," the application read: The child should be returned forthwith to me at the family home in Altona, Victoria, Australia. I would like the mother to return with the child. As I am unemployed, I am unable to cover the costs associated with their travel. I am willing to meet the child at the Melbourne Airport upon arrival. If the [mother] does not return I am able to look after the said child alone. In his petition, Baran did not propose any alternative arrangements for Samuel's care. On February 16, 2007, Baran filed a petition in federal district court, seeking Samuel's return. The court held an evidentiary hearing March 22, 2007, at which Beaty testified in person. Baran appeared by counsel. At the hearing, Beaty introduced as evidence a May 1997 affidavit Baran's ex-wife had filed in Australian court during custody proceedings regarding Baran's older children. In the affidavit, the ex-wife averred Baran had slapped her, thrown her against the wall, kicked her in the abdomen while wearing heavy work boots, and thrown furniture about the home during their relationship. Beaty also introduced transcripts of phone conversations between herself and Baran she had secretly recorded. Baran did not provide any testimony at the hearing, relying solely on the affidavit attached to his original petition, in which he denied having physically harmed Beaty during his relationship with her.In an opinion dated March 28, 2007, the district court found although Beaty had wrongfully removed Samuel from the country without Baran's consent, Samuel would face a grave risk of harm were he to be returned to Australia. Noting Baran had not suggested conditions of return that would reduce or eliminate the risks Samuel faced on return, the court denied the petition. The Eleventh Circuit Court of Appeals affirmed. Beaty contended on appeal that Samuel would face a grave risk of harm were he to be returned to Australia because of Baran's violence and drunkenness. Baran challenged the district court's conclusion, contending that his drunkenness and temper were not the sort of grave risks to which Article 13(b) is directed. He contended that to establish grave risk, Beaty was required to show Samuel had been mistreated, not that she herself had been verbally or physically abused. Although there was no evidence to suggest Baran intentionally harmed Samuel, the district court was presented with evidence Baran had threatened to do so both before and after Samuel's birth. Moreover, the court heard testimony that Baran had placed Samuel in harm's way by abusing Beaty while she was pregnant, verbally berating Beaty for hours on end while she held Samuel in her arms, and handling newborn Samuel irresponsibly while drunk. To deny return, the district court was not required to find Samuel had previously been physically or psychologically harmed; it was required to find returning him to Australia would expose him to a present grave risk of physical or psychological harm, or otherwise place him in an intolerable situation. Convention, art. 13(b). The evidence presented was sufficient to support the court's conclusion that Baran's violent temper and abuse of alcohol would expose Samuel to a grave risk of harm were he to be returned to Australia. Baran contended the grave risk analysis does not end when a court concludes the conditions to which the child will be returned pose a grave risk of harm. He argued that before denying a petition for return, the court must first determine whether the child's country of habitual residence is capable of protecting the child from the identified risk. The Court noted that neither the Convention nor ICARA specifies the manner in which a reviewing court must assess whether a grave risk of harm to the child exists and whether that risk alone justifies denying a petition for return. Nevertheless, before denying a petition for return, some federal courts have required respondents to present evidence the child's country of habitual residence is not equipped to protect the child upon return. This proposed requirement" appears to have originated with the Sixth Circuit's opinion in Friedrich v Friedrich, 78 F.3d at 1069. The Sixth Circuit's formulation has been repeated by courts throughout the country, and has been accepted by many lower courts as a governing principle of law. Not all courts, however, have accepted the Sixth Circuit's interpretation of the grave risk analysis. Relying on the plain language of Article 13(b), many courts hold when a respondent proves returning a child would expose him to a grave risk of physical or psychological harm, the reviewing court has discretion to deny the petition for return outright. That position is consistent with the Convention's official commentary and with directives from the United States State Department. (Eisa Prez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Actes et Documents de la Quatorzieme Session 426 (1980) ("Prez-Vera Report"), P 29; Hague Int'l Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. at 10510.) The State Department's pronouncements, while not binding, are entitled to deference. Although a court is not barred from considering evidence that a home country can protect an at-risk child, neither the Convention nor ICARA require it to do so. Although the Convention's goal is to quickly return abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children's safety than on their return. Consequently, the Eleventh Circuit declined to impose on a responding parent a duty to prove that her child's country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child's return. The court pointed out in a footnote that its rule does not prohibit courts from considering, as part of the discretionary decision to deny return under Article 13(b), whether the child's country of habitual residence may be able to protect the child from harm. It simply held that the responding parent may meet her burden of proving grave risk of harm without adducing evidence regarding the home country's ability or willingness to offer the child protection.
The Court noted that although the practice is far from uniform, some courts hold that once a respondent has shown a child is at grave risk of harm, the burden shifts to the petitioner to provide evidence that specific undertakings will alleviate the identified risk. (See, e.g., Danaipour v. McLarey, 286 F.3d 1, 15 (1st Cir.2002) (holding "proponent of the undertaking bore the burden of showing" country of habitual residence could provide adequate evaluation of alleged abuse); see also Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir.1995). When the petitioner makes such a showing, the district court must factor the proposed undertakings into its discretionary decision to grant or deny return. The State Department has recommended any undertakings ordered pursuant to the Hague Convention be "limited in scope and further the Convention's goal of ensuring the prompt return of the child to the jurisdiction of habitual residence, so that the jurisdiction can resolve the custody dispute." (Danaipour, 286 F.3d at 22 (citing Letter from Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Dep't of State, to Michael Nicholls, Lord Chancellor's Dep't, Child Abduction Unit, United Kingdom (Aug. 10, 1995), available at http://hiltonhouse.com/articles/Undertaking_Rpt.txt, last visited May 2, 2008).The State Department has explained "[u]ndertakings that do more than this would appear questionable under the Convention, particularly when they address in great detail issues of custody, visitation, and maintenance." Although the State Department does not oppose the use of undertakings in all circumstances, it has cautioned:When grave risk of harm to a child exists as a result of domestic abuse, however, courts have been increasingly wary of ordering undertakings to safeguard the child. (Simcox, 511 F.3d at 606; Danaipour, 286 F.3d at 26; Van De Sande, 431 F.3d at 571-72 (quoting Danaipour, 286 F.3d at 25).The Eleventh Circuit held that Baran bore the burden of proposing undertakings that would ameliorate the grave risk of harm to which Samuel would be exposed on return to Australia, yet he adduced no evidence on the question. Under the circumstances, the trial court reasonably concluded it could not guarantee Samuel's safety should it order him to be returned to Australia for further custody proceedings.