Case Update (31 March 2024): Gross v. Gross; Mature Child Objected to Returning to England; Judge conducts in-camera interview
Petitioner Mother sought the return of the parties’ now 14-year-old son from New York to England. The child has been in New York with Respondent Father since April 2022, when the Father claims the child refused to return. The Petitioner filed a return request under the Hague Abduction Convention on May 8, 2022, but withdrew the petition on August 22, 2022 to engage in arbitration before a rabbinical panel in England. When that was unsuccessful on March 15, 2023, she refiled the instant petition. The court held a trial in July 2023, and interviewed the child in camera on July 12, 2023, with the assistance of a Yiddish interpreter.
Prior to the child’s travel to New York in 2022, the child was, by all accounts, more erratic, was missing more school, and was difficult in class. He told his school that he was not happy. The child’s trip to New York for April was by agreement of both parents, and was intended to run from April 2 to April 27, 2022, encompassing Passover. The child got increasingly agitated over the few weeks in New York, expressing a desire to not return to England. Respondent suggested the child call and speak with his Rabbi in England, who suggested that the child stay a few additional weeks, until after Shavuot, but Petitioner refused to discuss this with the child, because it was a “discussion for adults.” Respondent told the child “that he had to return to England…” On April 26, 2022, Respondent’s brother texted Petitioner to advise that the child would not be returning to England. On May 5, 2022, the child was enrolled in school in Brooklyn. He was also placed in therapy and persisted in his desire to remain in New York with Respondent. Evidence demonstrated that the child became “emotionally disregulated” at the prospect of returning to England and that the child’s community in England made divorce a source of shame, which was causing the child extreme distress as a child of divorced parents.
The Respondent argued that the child would be exposed to a grave risk of harm if returned to England and that the child is sufficiently mature and objected to being returned. Petitioner countered that the Respondent unduly influenced the child by pursuing a public divorce that created the social stigma in England, coupled with the amount of time the child has now been with Respondent.
The U.S. District Court for the EDNY concluded that the child has never wavered in his desire to live with Respondent, and no one seemed to dispute that the child vehemently objects to returning to England. The child is mature - he cogently and poignantly described his struggles in England and his unhappiness at home, which was largely corroborated. He had mature and rational reasons for wanting to stay and for opposing a return. There is no credible evidence that the Respondent pressured the child to stay in the United States, and there was evidence that he was prepared to send the child back as scheduled. He never attempted to shut down communication between child and Petitioner. He proactively took steps to open their communication, including obtaining a cell phone for the child and encouraging the child to call his Mother.
The Court concluded that the Respondent could not meet his burden to demonstrate that a return would expose the child to a grave risk because the distress experienced to the child did not rise to the requisite level of abuse needed to demonstrate a grave risk of harm.
