Case Update (8 June 2023): Morales v. Sarmiento; repeated, sustained abuse of several partners, including criminal conviction based on that abuse, is sufficient to prove grave risk and deny return request
Petitioner Father seeks the return of his five-year-old son to Ecuador. Respondent Mother brought the child to the United States in January 2022. Petitioner is a businessman and law student in Ecuador, and has fathered three children, each having a different mother. Respondent is a licensed Ecuadorian dentist, and has applied for asylum upon entry to the United States. She accused the Petitioner Father of using his businesses to conduct illegal activity - smuggling medical equipment into Ecuador, human trafficking, and belonging to the mafia. She also accused him of significant domestic violence against her and his past partners, which she argued impacts the child.
The Petitioner Father has a prior criminal record. In December 2012, he was charged with felony battery in Florida on his then pregnant wife. In 2013, he was charged with 2 misdemeanors, but those were dropped. In May 2014, he was convicted of 2 felonies and 7 misdemeanors arising from charges for battery, harassment, domestic violence, and stalking that prior wife. In or about August 2016, Petitioner was deported from the United States to Ecuador based on his convictions. Later that year, he began a relationship with Respondent Mother. Respondent testified to various acts of violence by the Petitioner throughout their relationship. In December 2019, the family moved to Spain on nonworking visas. After a dispute in late January 2020, the parties separated, and Petitioner left Spain with their belongings, traveled to Japan, and began a relationship with his current domestic partner, then returning to Ecuador. In August 2020, Respondent and Child returned to Ecuador after reaching a verbal agreement with Petitioner, which she ultimately claimed was not upheld on his end . While the parties co-parented well, at first, that deteriorated, and culminated with a series of voicemails from Petitioner to Respondent in August 2021 that threatened harm to her. Respondent filed criminal charges, obtained a temporary restraining order, and, upon Petitioner filing a custody petition, the Ecuadorian court granted him temporary visitation with police supervision. In November 2021, there was another altercation between the parties and Respondent's extended family. On January 25, 2022, an Ecuadorian court eliminated the need for supervised access, and expanded the Petitioner's visitation with the child. That day, Respondent and child fled the country, "based on the advice of her Ecuadorian attorney."
The district court judge made several findings based on the testimony of an expert about domestic violence. Among those findings was that "[a]dult-on-adult domestic violence can cause trauma on children even if the children do not directly experience or witness the abuse themselves[,]" "[c]hildren exposed to domestic violence can develop PTSD[,]" [the child here was diagnosed with PTSD], and "[d]omestic or intimate partner violence is a significant indicator of child abuse." The judge noted that "[n]either party alleges that Petitioner has physically hurt his children in the past. Petitioner's witnesses testified to his love for his children." Despite this, the judge found that Petitioner had shown indifference to his children, and used custody and child support actions to punish his prior partners. The court noted that the Petitioner produced no evidence that he has reformed or taken steps to avoid repeating his past acts.
The Respondent used the allegations of domestic violence to argue that the Petitioner coerced her move from Spain back to Ecuador, and therefore Ecuador was not the child's habitual residence. The court concluded that parental intent is but one of many factors, and it was clear that, at the time of removal, the totality of the circumstances pointed towards all family members considering Ecuador to be home. In arguing a grave risk of harm, the Court found that Respondent met her burden that Petitioner "has a propensity for and sustained pattern of violence over an extended period." It further found that his "violence extended beyond these partners, including to other members of Respondent's family." His prior felony convictions for assaulting his pregnant wife factored into the court's findings. A further nail was when the court stated that "Petitioner repeatedly misrepresented facts [in his evidence] and expressed neither remorse nor reflection about his actions." The child's therapist and the child's lawyer both testified about the impact on the child - his PTSD diagnosis and his ability to recount his father's violence against the mother. Coupled with the expert's testimony about the connection between spousal abuse and the child's well-being, the court felt comfortable concluding that a return order would expose the child to a grave risk of harm in Ecuador.
The court noted that the Petitioner did not present ameliorative measures, but the court stated that it "finds that obvious ameliorative measures would likely be inadequate." It based this on the Petitioner's multiple citizenships, financial resources, and that the Ecuadorian police and justice system have appeared to fail in its ability to provide adequate protections to the child in the past.