## Facts

- The parents, Mexican nationals who never married, lived together in rural Mexico with the father’s parents and had two children, Sergio and Raul.
- The mother alleged the father repeatedly abused alcohol and physically abused her throughout the relationship, often in front of the children; the children were occasionally struck.
- In July 2001, the father choked the mother in Raul’s presence and attempted to throw her down stairs; the mother reported the incident to police, left temporarily, and later took the children to New York.
- After approximately eight months, the mother returned to Mexico with the children based on the father’s assurances, but the abuse and drinking resumed.
- In June 2003, the mother again took the children to New York, where the children appeared calmer and safer.
- Expert testimony indicated Sergio was highly traumatized, diagnosed with PTSD linked to exposure to domestic violence, and expressed suicidal intent if returned to Mexico.
- Expert testimony also indicated Raul would suffer serious psychological harm if separated from his mother and brother.
- The family’s Mexican community was described as rural with limited accessible support services for domestic-violence victims.

## Issues

1. Whether the father had and was exercising “rights of custody” under Mexican law such that the children’s removal to New York was wrongful under the Hague Convention.
2. Whether the mother proved, by clear and convincing evidence, that returning the children to Mexico 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 treated wrongful removal as established based on its earlier custody-rights determination.
- The court held the mother proved the Article 13(b) grave-risk exception by clear and convincing evidence.
- The court found return would pose a grave risk of serious psychological harm, particularly to Sergio, given the history of severe domestic violence witnessed by the children and the expert evidence of trauma and suicidality.
- The court also credited evidence that effective protective measures were not realistically available in the children’s rural Mexican community.
- The petition for return was denied, and the children were permitted to remain in the United States with the mother.

## Legal Principles

- Under ICARA, the petitioner must prove wrongful removal or retention by a preponderance of the evidence.
- A respondent invoking Article 13(b) must 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.
- The Article 13(b) defense is construed narrowly, but serious, recurring domestic violence witnessed by children, coupled with substantial psychological evidence of likely severe harm, can satisfy the grave-risk standard.
- In assessing grave risk, courts may consider whether meaningful protective measures in the habitual-residence country are realistically accessible to reduce the danger upon return.

## Conclusion

The court denied repatriation under the Hague Convention because the respondent established that returning the children to Mexico would likely cause severe psychological harm in light of sustained domestic violence exposure, documented trauma and suicidal risk, and limited available protections in the children’s home community.


Olguin v. Santana, No. 03-CV-6299 (JG), 2005 WL 67094 (E.D.N.Y. Jan. 13, 2005)