Case Update (17 Sept 2024): Funez Mene v. Sokola; domestic violence with additional developmental concerns present a grave risk causing court to deny child’s return to Poland

The Petitioner Father seeks the return of the parties’ child to Poland using the Hague Abduction Convention. The U.S. District Court for the SDNY denied the request under Article 13(b). The court prefaced its Finding of Facts with a statement that made clear that the court endeavored to achieve a fast resolution, but that the “parties’ conduct during pretrial proceedings and at trial ultimately necessitated the reopening of the record after trial” which made the proceedings much longer. During one such reopening of the record, and some additional discovery, Respondent provided the court with a copy of a French court decision “evidencing Petitioner’s extensive criminal history, in that country and elsewhere” that, if accurate, would indicate “that Petitioner and his counsel had repeatedly lied to the Court and to Respondent over the course of the instant proceedings”. Petitioner then sought to voluntarily withdraw his petition for the child’s return, the Court denied the request, and the Petitioner renewed it. In explaining why the Court denied the request, it stated that “[the Court] … [does not] really believe [such] a dismissal [would genuinely be] “with prejudice” because [Petitioner] can shift gears and obtain comparable rel[ief] [i.e., the return of BFS to Poland] through [alternative means].” The Petitioner invoked his 5th Amendment rights. After the proceedings were closed, but before this final order, the Petitioner sought interim relief, to remove the child from Respondent and place the child in the care of a third party, and a ruling of contempt for Respondent purportedly not letting him have video access to the child daily.

In the court’s Finding of Facts, it discredited the Petitioner’s trial testimony as not credible. The court found that the Petitioner engaged in emotional, financial, and physical abuse of the Respondent. The court found that Petitioner had abused the family’s pets in the past, and other individuals, and it “often occurred in the presence of [the child]”. The court also found that the child “was not insulated from Petitioner’s unpredictability and propensity to anger.” Petitioner sought criminal charges against Respondent in Poland, but “the District Prosecutor has brought charges against Petitioner stemming from both his abuse of Respondent and his purported animal abuse.” There is a pending divorce action in the Polish courts. The Respondent has placed the child into different services in New York, “including dedicated speech, developmental, and special education therapy”. “Conversely, testimony at trial confirmed the deleterious impact of removing BFS from these therapies.”

The court, in its Findings, concluded that the Petitioner had lied about several things during trial, but found the Petitioner’s criminal history to be the most salient. When asked if he had been convicted of a crime in France, he stated “no.” But, subsequent documents show otherwise. “These documents disclose that Petitioner has been convicted on four occasions of crimes in France and has served at least three prison sentences (two concurrently).” The court, in examining whether the child would be exposed to a grave risk noted that “whether a grave risk of harm exists depends ‘not only [on] the magnitude of the potential harm but also the probability that the harm will materialize.’” The court also then examined ameliorative measures in Poland. The court concluded that the abuse of Respondent, and the abuse of the child, aggravated by “Petitioner’s well-established criminal history of obsessively targeting former romantic partners” poses a grave risk of harm to this child if returned. Furthermore, the child here has significant developmental delays and has shown marked improvement in New York, and “‘disruption to [this programming] would risk the development of mental health symptoms [] such as anxiety and depression,’ which “could disrupt [BFS’s] progress.’” While this, itself, may not be a grave risk of harm, it further supports an overall finding of a grave risk of harm. Finally, at trial, competing experts debated the viability of measures under Polish law that protect victims of domestic violence. The court’s take-away from their testimony was that the Polish system is “one that, in practice, operates slowly and inefficiently and bears substantial blind spots, particularly when it comes to the protection of minor children.” On top of that, the court found that Petitioner has a history of violating court orders and takes no responsibility for his past actions.

In denying the Petitioner’s request to return the child, the court also stated that, “ it also declines to address whether Respondent and BFS’s ongoing asylum application requires the staying of such an order until BFS’s asylum application has been determined”. It also noted that due to Respondent’s recent problems with alcohol abuse and mental health issues, the minor child has been placed in foster care in NY. The Petitioner sought to reopen the record for more evidence on this, but the court declined, so that the Polish and New York proceedings can move forward with regard to the child.