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Lawyers Manual - Unified Court System

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108 Liberty Aldrich and Lauren Shapiro<br />

<strong>Court</strong>s in New York and other states have applied the “grave risk” exception<br />

based on evidence of domestic violence. In In Re Rodriguez, 41 there was<br />

evidence of physical and psychological abuse of one of the two children and of<br />

the mother by the father; a psychologist testified that both children and the<br />

mother suffered from Post Traumatic Stress Disorder as a result of the father’s<br />

actions. In Blondin v Dubois42 the father frequently hit and threatened to kill the<br />

mother and one of the two children. In this case, too, there was expert testimony<br />

that both children suffered from psychological trauma and would be further<br />

traumatized if returned to France, the country from which the mother had fled.<br />

In Walsh v Walsh43 the First Circuit <strong>Court</strong> of Appeals went even further and<br />

held that evidence of spousal abuse was enough to trigger Article 13(b)’s grave<br />

risk exception, even without taking into consideration evidence that violence<br />

had been directed at the children, because the father had “demonstrated an<br />

uncontrollably violent temper.” According to the court, the social science<br />

literature indicated that “serial spouse abusers are also likely to be child<br />

abusers,” and the court added that “both state and federal law have recognized<br />

that children are at increased risk of physical and psychological injury<br />

themselves when they are in contact with a spousal abuser.” 44 The court stated<br />

that it was fundamental error for the district court to discount “the grave risk of<br />

physical and psychological harm to children in cases of spousal abuse.” 45<br />

International Parental Kidnaping Act<br />

The rights of a client with children fleeing an abuser or a client fearing<br />

abduction of her children may also be affected by the federal international<br />

Parental Kidnapping Act. This law makes it a crime to remove a child from the<br />

US or retain a child outside the US with the intent to obstruct the lawful exercise<br />

of parental rights. Violators are subject to a fine and imprisonment up to three<br />

years. A parent fleeing an incident or pattern of domestic violence, however,<br />

may use the abuse as an affirmative defense to prosecution under this statute.<br />

Escaping Violence: What to Consider<br />

When Advising Your Client<br />

In New York State, courts assume, absent evidence to the contrary, that it is<br />

in the child’s best interest to have a close relationship with both parents;<br />

therefore, relocating any distance from the other parent is generally discouraged.<br />

Although courts are obligated to consider proven domestic violence, you will<br />

find that this de facto presumption against relocation pervades New York

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