## Facts

- A Cypriot father and Russian mother married in Cyprus in 2000 and lived there until late 2007.
- They had two minor children, both born in Cyprus and Cypriot citizens.
- In November 2007, the family traveled to Pennsylvania for what was presented as a temporary visit, with round-trip tickets reflecting planned return dates in January 2008.
- The relationship involved a sustained pattern of domestic violence; the court credited evidence that the father frequently abused alcohol and drugs and physically and psychologically abused the mother throughout the marriage.
- Although the father had not physically assaulted the children, the court found he yelled at them, threatened to take them from their mother, and exposed them to frequent conflict and abuse directed at the mother.
- During the Pennsylvania visit, the father returned to the mother’s parents’ home “drunk and aggressive,” prompting a police call.
- The mother obtained a Pennsylvania Protection from Abuse order after an adversarial hearing; it required the father to stay away, granted the mother sole custody, and limited the father to supervised visitation.
- The mother later sought and was granted U.S. asylum for herself, with derivative status for the children, based on fear of harm if returned to Cyprus.
- The father filed a petition under the Hague Convention and ICARA seeking the children’s return to Cyprus; after an evidentiary hearing, the court denied relief.

## Issues

1. Whether the children were wrongfully retained in the United States within the meaning of the Hague Convention, including whether Cyprus was their habitual residence and whether the father had custody rights under Cypriot law.
2. Whether, even if wrongful retention were shown, the mother proved by clear and convincing evidence that returning the children to Cyprus would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation under Article 13(b).

## Decision

- The court denied the petition for return.
- The court assumed, without deciding in detail, that Cyprus was the children’s habitual residence and that the father held custody rights sufficient to satisfy the petitioner’s prima facie case.
- The court held that the mother established the Article 13(b) grave-risk defense by clear and convincing evidence.
- The court found the father’s longstanding domestic violence against the mother, the children’s exposure to that violence and threats, and the corroborating asylum grant supported a grave risk of psychological harm and an intolerable situation upon return.
- The court concluded that proposed reliance on future protective measures in Cyprus did not adequately address the proven risk in the circumstances presented.

## Legal Principles

- Under ICARA, the petitioner must prove wrongful removal or retention by a preponderance of the evidence.
- Article 13(b) provides an affirmative defense requiring the respondent to prove by clear and convincing evidence that return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.
- A grave-risk showing may be based on severe domestic violence against the abducting parent when the children are exposed to that violence or related threats, even if the children are not direct victims of physical abuse.
- A prior adjudication granting protective relief and an asylum determination may corroborate the credibility and seriousness of asserted risks, though neither is automatically dispositive in a Hague proceeding.
- The Convention’s preference for return yields where the evidence satisfies the Article 13(b) standard.

## Conclusion

The court refused to order the children’s return to Cyprus because the mother proved, by clear and convincing evidence, that return would expose the children to grave psychological harm and an intolerable situation given the father’s sustained domestic violence, the children’s exposure to it, and corroborating protective and asylum determinations.


Miltiadous v. Tetervak, 686 F. Supp. 2d 544 (E.D. Pa. 2010)