The parents share joint custody of their daughter, AC, under the terms of a Brazilian custody order. AC was born on March 7, 2007 in Brazil. Her parents separated in August 2016, and ultimately divorced in Brazil on April 26, 2018. In May 2018, Respondent Mother informed Petitioner Father that she intended to relocate with AC to New York. Father signed a 3-month travel authorization for the child, and the child and Mother relocated to Mineola, and moved in with Jean Cabral, who married Mother later that year. The parties’ relationship was violent, exacerbated by the Father’s drinking and drug usage.
The Father filed a return petition with the EDNY, which went to trial in December 2020. Mother argues 4 separate exceptions to the child’s return to Brazil. First, the child, after both parents conceded that the 14-year old AC was mature, was interviewed in chambers and was evaluated by Dr. Favaro, an expert who testified on behalf of Mother. She stated a “preference” to remain in New York. (“AC’s preference to stay in the United States remained unequivocal – when the Court asked AC where she wanted to live, she responded: ‘Here definitely.'”) Second, the Mother argued that returning the child would expose her to a grave risk of harm. Aside from the physical and verbal abuse towards Mother, including in front of AC, the court stated, “…[T]he Second Circuit has not, ruled out ‘the possibility of a case in which a petition seeking a child’s return was filed less than a year after the child’s abduction, but it was nevertheless established by clear and convincing evidence on the child’s behalf that … she is so deeply rooted in the United States that ‘there is a grave risk that the child’s return would expose the child to … psychological harm.” AC was witness to her Mother’s abuse, including her Father’s attempt to suffocate her Mother. Returning her to the location of that abuse would intensify the child’s trauma. The record was further replete with instances where the Father sent AC alarming, and sometimes threatening, texts, reprimanding her for disrespecting and disobeying him and insisting that the Mother is a criminal who must be punished. He even went so far as to send her a photo of a gun. Dr. Favaro testified that “if AC is forced to return to Brazil, in close physical proximity to her father’s manipulative and alienating behavior, she will be overcome by a ‘sense of fear that would pervade all elements of her life’ akin to being taken hostage.” He opined that returning the child would cause her confusion, maladjustment, and panic, and could expose her to “catastrophically negative influences on her emotional health and development.”
The court, having found that AC stated a “preference” and that she would be exposed to harm upon her return, denied the Father’s return request, and did not explore the remaining exceptions raised by the Mother.