A 4-year-old boy caught in the middle of a bitter international custody dispute must return to Singapore with his father, despite claims from his mother that the move would put him in "grave risk" of domestic abuse, a federal appellate court has ruled.
After Lee Jen Fair took her son Shayan to New York from Singapore in violation of a court order, she contended the boy would be harmed by witnessing physical and verbal abuse against her by his father, Abdollah Naghash Souratgar, and would himself be vulnerable to abuse. She also argued that the father could take Shayan to Iran or seek custody in Islamic courts that favor men.
But a unanimous panel of the U.S. Court of Appeals for the Second Circuit was not swayed by the mother's arguments that a district court judge who ruled for the father had shown a fundamental misunderstanding of domestic abuse.
"After carefully reviewing the record, we find that Lee's arguments are permeated with conjecture and speculation," the panel concluded Thursday in Souratgar v. Fair, 12-5088, written by Judge John Walker Jr. The decision grants repatriation of the boy under the Hague Convention on the Civil Aspects of International Child Abduction.
Judges Richard Wesley and Christopher Droney also sat on the panel, which heard arguments on March 13.
Lee and Souratgar married in January 2008, and Shayan was born one year later. The circuit decision described the couple's marriage as "stormy." Lee claims Souratgar abused her in front of the boy, which he denies. Likewise, Souratgar claims Lee threatened him with knives and had suicidal tendencies, which she denied.
With the marriage falling apart, Lee petitioned Singapore's civil courts for sole custody. Souratgar cross-filed for sole custody.
At one point, Lee and Shayan went to Malaysia on a temporary basis to ask about her Malaysian citizenship. Souratgar filed an ex parte custody application in the Sharia court there, which granted joint custody.
Souratgar's Malaysian custody bid was dismissed for jurisdictional reasons and he initially filed an appeal but testified he later opted to terminate it.
After Lee and Shayan returned to Singapore, custody proceedings resumed in its civil courts, which ordered that neither parent could remove Shayan from Singapore without the other's consent.
Both sides agreed to resolve custody in Singapore's Sharia courts. In May 2012, however, Lee brought Shayan to Dutchess County, N.Y., where a family member lived.
When Souratgar located his wife and son, he petitioned for Shayan's return, claiming that the son had been improperly removed under the Hague Convention.
Southern District of New York Judge P. Kevin Castel ordered Shayan to live with Souratgar pending the litigation.
After a nine-day hearing, Castel ordered repatriation in December 2012. Castel said Lee had failed to demonstrate affirmative defenses to a finding of wrongful removal, including that repatriation would mean a "grave risk" of mental and physical harm to the boy under Article 13(b) of the convention.
Though Castel deemed both Lee and Souratgar "incredible" at times, he did find spousal abuse by Souratgar such as "shouting and offensive name-calling," along with some instances of physical abuse against Lee, such as kicking, slapping, grabbing and hitting.
In sometimes testy oral argument on the appeal of Castel's decision, the circuit judges asked why no psychological exam had been conducted on Shayan. They also wanted to know how the abuse Shayan could purportedly witness could continue if Lee and Souratgar lived apart upon return.
'NOTHING BEYOND SPECULATION'
In his decision, Walker observed that spousal abuse is "only relevant" to a grave risk defense if it "seriously endangers the child." The inquiry, he said, is "not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm."
Here, said Walker, "there is nothing in the record beyond speculation that Shayan would suffer unavoidable psychological harm if returned to Singapore."
He noted that neither of the parties sought a psychological evaluation of Shayan. Moreover, Walker said the guardian ad litem’s report showed that Shayan appeared "active and happy" but also worried about the "difficulties between his parents."
The judge later said, "for us to hold evidence of spousal conflict alone, without a clear and convincing showing of grave risk of harm to the child, to be sufficient to decline repatriation, would unduly broaden the Article 13(b) defense and undermine the central premise of the Convention: that wrongfully removed children be repatriated so that questions over their custody can be decided by courts in the country where they habitually reside."
Walker emphasized that the holding did not stand for the proposition that the type of abuse Lee described could never make for a successful "grave risk" defense but relied on "the district court’s finding that Shayan would not be in danger of being exposed to a grave risk of physical or psychological harm and that the Singapore court system has demonstrated its ability to adjudicate the dispute over his custody."
Lee offered "various scenarios" under which Shayan would be deprived of his mother if forced to return to Singapore, but the judge said none was demonstrably likely.
For example, Lee argued a grant of custody to Souratgar would be certain in Sharia courts, which she said favor fathers over mothers and Muslims over non-Muslims.
"If anything, the record is to the contrary," Walker said. He pointed out that Lee obtained a dismissal of the Malaysian Sharia court order, which was for joint custody. Moreover, he said, Lee had agreed that a Sharia court in Singapore would resolve custody.
Walker noted that Souratgar had committed to resolving custody in civil courts. Though Lee argued the commitment was unenforceable, Walker said she could "still invoke it, as well as this Court’s decision, in any application to transfer the custody determination" to Singapore’s civil courts.
Walker said the lower court was correct in finding no credible evidence that Souratgar planned to bring Shayan to Iran.
"We cannot fail to observe, moreover, that unlike Lee, Souratgar has to date honored the legal requirements of the courts in Singapore," he said.
Robert Arenstein of Manhattan represented Souratgar. He called the ruling "bulletproof" and "totally on mark with the Hague Convention."
Arenstein said a showing of domestic violence was "not a defense" under the Hague Convention.
"I said it, Judge Walker said it, Judge Castel said it," Arenstein said. But domestic violence advocates, he added, did not "want to believe it."
Randy Mastro of Gibson, Dunn & Crutcher argued for Lee at the circuit. She was also represented by Jane Kim of Gibson Dunn and Dorchen Leidholdt of Sanctuary for Families Center for Battered Women’s Legal Services. All three worked pro bono.
"This is really a heartbreaking decision," said Mastro. "We’re exploring every legal option," he added, declining to elaborate.
"We still have a long way to go in addressing these important social issues that tear so many families apart, but we are very much committed at this law firm and Sanctuary for Families to seeing justice done in this area, not only for Ms. Lee but all those similarly situated," Mastro added.