February 20, 2017

NY Judge Rules That St. Martin's Legal System Cannot Protect Abused Spouse And Child -- They Stay In U.S.

Pardalis & Nohavicka Domestic Violence Law Update:

NY Judge Rules That St. Martin's Legal System Cannot Protect Abused Spouse and Child -- They Stay In U.S.

The family lived in St. Martin. The husband was abusive to his wife and son. The mother left the island and came to New York. The husband filed a petition in New York seeking an order directing the return of his son, K.D., to French St. Martin, pursuant to the Hague Convention as implemented in the United States by the International Child Abduction Remedies Act (“ICARA”).

The mother described K.D. witnessing her husband throw their puppy across the room, breaking the puppy’s leg. He frequently screamed at the mother while she was holding K.D. in her arms, and “would sometimes grab K.D. from [her] arms and rip him away” from her. When K.D. was a baby, the husband frequently grabbed him from the mother's arms, screamed at him, and called him names, like “ignorant piece of shit” and “spoiled brat.”on at least one occasion, The husband slammed on the car brakes when K.D. refused to put on his seat belt causing K.D. to lurch forward. Also, the husband once snatched a toy car from K.D. because he was rolling the car on the hood of his truck, and then screamed at the mother in front of K.D. because she “didn’t react fast enough to stop [K.D.] from doing it.” When K.D. accidentally knocked over husband’s beer, he “hurl[ed] the beer across the room,” and threw his phone.

During an argument, the husband picked up his wine glass and he hurled it at his wife and it crashed” against a wall, sending glass everywhere. Then, he kicked the glass patio door twice, shattering the glass and severely cutting his foot. At trial, video and photograph evidence which confirmed, that the husband’s foot began to bleed profusely, and as he walked across the floor – stopping to berate his wife further on his way out of the house – he left bloody footprints along the way.

The central question in this case is whether the mother had established by clear and convincing evidence that returning K.D. to French St. Martin would put K.D. at grave risk of physical or psychological harm. The Court concluded that she satisfied that burden of proof, and further concluded that returning K.D. to St. Martin would put him at grave risk of psychological harm.

The Court heard testimony from four expert witnesses on the topic of the legal system in French St. Martin and what protections are available to victims of domestic violence. The Court found that the procedures in place in St. Martin are insufficient to protect Ms. Davies and K.D. In particular, it would not be possible to ensure the mother and son's safety from the husband in St. Martin because of the inability to obtain an order of protection in a timely manner.

The Court declined to order the return of K.D. to St. Martin.

Here is the case: 


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