DECISION AND ORDER AFTER TRIAL On or about August 24, 2017, the Petitioner (hereinafter “the Mother”) petitioned this Court alleging that the Respondent (hereinafter “the Father”) wrongfully removed the parties’ son, JF, Jr. (hereinafter “the Child”) from the Dominican Republic and seeking an Order directing the Child’s return pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, entered on October 25, 1981 (hereinafter “Convention”) and the International Child Abduction Remedies Act (“ICARA”)[22 USCA §9003, formerly 42 U.S.C. §11601]. Both the United States and Dominican Republic are signatories to the Convention. By “So-Ordered” Stipulation dated September 11, 2017, the parties agreed to set the application down for a trial. A trial was conducted to determine whether the Mother has established the requisite elements under the Hague Convention which would mandate the child’s return to the Dominican Republic and, if she has, whether the Father has established an exception or defense thereunder. The trial was held on December 1,4,7,8,13,19 of 2017; January 16, 18, February 20, 21, 22, 23, and March 6, of 2018.1 The Court heard testimony from eight witnesses: Ms. GP and Ms. SP; both friends of the Mother’s; Ms. ID, a friend of the Mother’s and the Child’s godmother; Mr. SMS, the Mother’s father (hereinafter “the Maternal Grandfather”); the Mother; SF, the Father’s mother (hereinafter “the Paternal Grandmother”); Susan Silverstein, LMSW, the Father’s expert; and the Father. The Court held an in camera of the Child in the presence of his court appointed attorney on March 9, 2018. The parties and the attorney for the Child submitted post-trial briefs on or about March 30, 2018.2FACTSThe parties were never married. The Mother is a citizen of the Dominican Republic and the Father is a citizen of the United States. The parties met in 2010 in the Dominican Republic where both were enrolled in medical school. The subject Child of the parties was born on XXXX XX, XXXX, in the Dominican Republic.The Child was raised in the Dominican Republic and spent time visiting the Father’s family whom reside in Levittown, New York. The Child visited and stayed with the Father’s family on the following dates: December 23, 2012 through January 13, 2013 (accompanied by both parents); March 18, 2013 through September 7, 2013 (accompanied by both parents except for one month when he was accompanied by the Mother while the Father attended a MLE preparatory course in Florida); May 21, 2014 through June 23, 2014 (accompanied by both parents) ; July 3, 2015 through August 4, 2015 (accompanied by the Father); and then December 24, 2015 through January 17, 2016 (accompanied by the Father). Prior to the Child’s first visit to the United States in December, 2012, the parties obtained a United States passport and United States citizenship for the Child, making him a dual citizen of the Dominican Republic and the United States. During a stay in New York in or about April, 2013, the parties obtained a social security card on behalf of the Child listing the Levittown, New York, address as the Child’s residence.The Mother graduated from medical school in 2011. Thereafter, she applied for and was awarded a Fulbright Scholarship from the Dominican Republic to obtain a Master’s Degree in Health Administration from the Rochester Institute of Technology in Rochester, New York. In August, 2014, the Mother left for Rochester, New York to begin the program while the Father remained in the Dominican Republic with the Child. The Mother visited the Child in the Dominican Republic for three days in September, 2014 and for a month from December, 2014 though January, 2015. She again visited with the Child when the Child and the Father were in Levittown, New York in late July, 2015 and early August, 2015. The Mother, Father and Child returned to the Dominican Republic in August, 2015. The Mother stayed for about 15 days before returning to Rochester to continue her studies. The Mother testified that from August, 2014 until that time, she communicated with the Child via “Skype” while in Rochester. However, the Father testified that the Mother was often too busy or unavailable to speak with the Child.In August of 2015, the Father learned that the Mother had become romantically involved with another man while in Rochester, New York. It was at that time that the Mother claims that the Father no longer allowed her to speak with or communicate with the Child. The Maternal Grandfather, who had been spending time with the Child in the Dominican Republic on a regular basis, claims that he was denied access to the Child shortly thereafter. The Father denies those claims.The Mother completed her Master’s Degree and returned to the Dominican Republic in February, 2016. Upon her return, the Mother states that she immediately proceeded to the Father’s home from the airport, but that the Father did not allow her to see the Child until four days later. Shortly thereafter, because the Mother claims her access to the Child was so restricted, she sought the assistance of the Dominican Republic courts. In court, the parties agreed to an “informal arrangement” wherein the Mother would be permitted to spend time with the Child from Friday evenings through Monday mornings. In March, 2016, the Mother filed documents with the authorities in the Dominican Republic to prevent the Father from leaving the Country with the Child without her consent.On March 15, 2016, there was an altercation between the parties wherein the Father alleged the Mother had pushed her way inside his home and physically lunged at him. The parties returned to court and obtained a reciprocal “order of protection.” The order, which was signed by both parties and the Public Prosecutor in the Dominican Republic provides “[t]he Public Prosecutor’s Office requests an order of reciprocal alienation for the parties in order to avoid violence of any kind and they may preserve their physical integrity.” At that time, the parties ceased communication with each other and the Maternal Grandfather acted as the intermediary for transporting the Child back and forth between the parties.In October, 2016, the parties returned to court at the Father’s request, claiming that the Mother was refusing to return the child to him. On October 19, 2016, both parties, while represented by counsel, appeared in court and agreed to an order wherein they would equally share time with the Child. Although neither party was happy with this outcome due to having felt pressured to come to an agreement, they both complied with the order until the Father left for the United States with the Child on November 30, 2016.On November 24, 2016, during the Father’s parenting time with the Child, the Father and the Paternal Grandmother, whom was visiting in the Dominican Republic, attempted to leave the Dominican Republic and travel to New York with no intention of returning. The Child was stopped in the airport by security. The Father and the Paternal Grandmother were told that they could leave the Country, but the Child could not.The Father, the Child and the Paternal Grandmother returned to the Father’s home in the Dominican Republic and the Father contacted his attorney. According to the Father, his attorney informed him that he would get him the documents necessary for them to travel abroad with the Child. The Father alleges that he then met with his attorney, signed some documents and was handed an envelope with papers which he never opened or reviewed. On November 30, 2016, the Father returned to the airport with the sealed envelope, the Child and the Paternal Grandmother, at which time they were all permitted to leave the country. They all traveled to the Father’s parent’s home in Levittown, New York, with no intention of returning.Days after arriving in New York, on December 5, 2016, the Father filed a custody petition3 in New York State Family Court, County of Nassau. An attorney was appointed to represent the child on January 5, 20174. On February 22, 2017, the Family Court was notified by the United States Department of State that an application for return of the child to the Dominican Republic under the Hague Convention had been received by the Department of State. Notwithstanding said notification, on May 17, 2017, the Family Court granted the Father’s application for sole legal and residential custody of the Child upon the default of the Mother.5The Mother petitioned this Court on August 23, 2017 by Order to Show Cause seeking, amongst other related relief, an Order directing the Child’s return to the Dominican Republic. The Mother arrived in the United States in November, 2017, and has remained here throughout the course of this proceeding. Although the Child is primarily residing with the Father, the Mother has been enjoying regular parenting time with the Child during the pendency of this proceeding.DISCUSSIONThe issues before this Court are limited. The Court is not making a determination as to which parent is better suited to care for the Child or what might be in the Child’s best interests (See: Convention at Art. 19; Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012). The inquiry is limited to whether this Court must direct the return of the Child to the Dominican Republic pursuant to the Hague Convention. Absent the Father’s establishment of an exception or affirmative defense, the Court must direct the Child’s return pursuant to Articles 3 and 4 of the Convention. The Mother is required to establish, by a preponderance of the evidence, that the Father wrongfully removed the Child by demonstrating: (1) that prior to the removal or retention, the Child was habitually a resident in the Dominican Republic; (2) that the removal or retention of the Child was in breach of the Mother’s custody rights under the foreign country’s law; and (3) that the Mother was actually exercising her custody rights at the time of the removal or wrongful detention.Habitual ResidenceThe first element the Mother must prove is that the Dominican Republic was the child’s habitual residence. The term “habitual residence” is not defined in the Hague Convention, but case law has provided guidance as to what the Court should consider in making this determination. The United States Court of Appeals, Second Circuit, in Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005) interpreted the term as follows:First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.Other courts have focused on where the child actually resides, not on the future intent of the parties: “the court must focus on the child, not the parents, and examine past experience, not future intentions.” (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); see also: Brennan v. Ciabult, 227 A.D.2d 965 (4th Dept., 1996).The parties presented conflicting testimony regarding their intention to remain in the Dominican Republic with the Child. The intent and shared intent of the parents is an issue of fact determined by the trial Court. Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012); Hofman v. Sender, 716 F.3d 282 (2d Cir. 2013).In addition to her own testimony, the Mother presented three witnesses, two longtime friends and the Maternal Grandfather, all of whom reside in the Dominican Republic. Each witness testified to conversations had with the Mother in the presence of the Father wherein the Mother expressed her desire and plans to continue to reside in the Dominican Republic with the Child and to practice medicine. The Mother testified that with the exception of the time spent obtaining her Master’s degree in Rochester, New York, she has always resided in the Dominican Republic. She testified that the reason she attended school in New York was to further her economic opportunities upon her return to the Dominican Republic and that she is now qualified only to work as a medical doctor in the Dominican Republic. She further testified that it was very important to her for the Child to grow up in the same town in which she was raised. The Mother acknowledged conversations had with the Father wherein the idea of residing in Spain or Nicaragua was discussed but stated that she expressed it was always her desire and their ultimate decision to remain in the Dominican Republic. The Mother testified that the only reason a United States Passport and dual United States citizenship was obtained for the Child was to make it easier for the Child to travel to New York to visit the Father’s family on vacation. As to the social security card, the Mother testified that she agreed to the Child obtaining one at the request of the Paternal Grandmother.The Father, a United States Citizen who was born in Nicaragua and moved to the United States when only three months old, testified that it was the parties’ intention to reside in the United States upon the completion of his studies in order to provide the child with a better education and greater opportunities. Both the Father and the Paternal Grandmother testified to several conversations had with the Mother wherein the Mother expressed her desire to live in New York because of the greater opportunities available in the United States. The Father testified that the only reason he spent several years in the Dominican Republic was to complete his education. The Father testified as to the many occasions the Child traveled to New York and stayed with his family. He claims that the parties obtained a United States passport, United States citizenship and a social security card for the Child in furtherance of their plans to reside in the United States. The Father and the Paternal Grandmother also testified to the fact that the Child was baptized in the Father’s family’s church in New York in September, 2013.6 The Paternal Grandmother testified that the Mother registered as a practitioner in the church to establish her presence there in anticipation of the move to New York. The Mother testified that she had to become a member of the church in order to have the child baptized there and she agreed to do so at the request of the Father’s family.The Father testified that the Mother attended a Masters program in New York so that she could be more employable in the United States. The Father further testified that while the Mother was attending school in Rochester, she became engaged to a man whom resided in The Bronx. He claims that in August, 2015, the Mother advised him of her intention to settle with her fiancé in The Bronx, New York.7 Upon cross examination, the Father acknowledged that the easiest way for the Mother to reside in the United States was for them to get married and although he had asked the Mother to marry him twice when they were still a couple, she declined both times. He also testified that he asked the Mother to fill out permanent resident paperwork for the United States when they were still a couple which he never saw her complete. The Mother did obtain a VISA to visit the United States, but did not obtain any documents which would have allowed her to reside in this country.Having assessed the credibility of the witnesses and having considered the parties’ actions as they relate to their stated intent, the Court finds the Dominican Republic to be the Child’s habitual residence. Although the Child enjoyed frequent visits to New York where he stayed in the home of the Father’s parents, the majority of his life was spent in the Dominican Republic. It was where his home was, where he attended preschool, where he attended church and where his medical doctors were. There is a distinction to be made between a child who goes somewhere for a temporary duration and a child permanently moving to a new location. A Child who goes somewhere for a temporary duration, such as summer camp, is not considered to have acquired a new habitual residence because “he already has an established habitual residence elsewhere and his absence from it — even from an entire summer — is not indication that he means to abandon it.” Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (quoting Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).The Court has further considered that the Father chose to seek relief from the courts of the Dominican Republic on more than one occasion on issues pertaining to the Mother and the Child. In fact, in October 19, 2016 the court awarded the parties equal parenting time with the Child as a direct result of the Father’s election to seek relief from the Dominican Republic.There was no evidence that the Child unequivocally acclimated to a location other than the Dominican Republic so as to allow the Court to disregard the intent of the parties. The fact that Child may have acclimated to the United States from the time he was removed on November 30, 2016 until now is not the acclimation intended under this habitual resident analysis:8The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich’s knowledge or consent Ms. Friedrich ‘altered’ Thomas’s habitual residence, we would render the Convention meaningless.” (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993)Accordingly, the Court finds that the Child was a habitual resident of the Dominican Republic prior to his removal.Breach of Custody Rights:The term “custody rights” is defined in Article 5(a) of the Convention as “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” It also covers rights “attributed to a person…under the law of the State in which the child was habitually resident immediately before the removal or retention.” (Article 3(a)).There was no testimony suggesting that at the time the Father removed the Child one parent had superior custody rights over the other. Both parties acknowledged the directive of the court from the Dominican Republic dated October 19, 2016, which awarded equal parenting time with the Child in accordance with a set schedule. Furthermore, the Mother’s testimony that the Dominican Republic requires authorizations from both parents for a minor child to travel abroad was not refuted and the Mother did not authorize the Child’s travel. This automatic travel restriction has been declared a “right of custody” within the meaning of the Hague Convention. See: Abbott v. Abbott, 560 U.S. 1 (1983). For any and all of these reasons, the Mother had custody rights to the Child at the time the Father and Child left the country.Exercising Custody Rights:Under Article 3(b) of the Convention, the removal is deemed wrongful when, at the time of removal, custody rights were “actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”Although the Mother was in Rochester, New York, for an extended period of time during which the Father exclusively cared for the Child, the Court’s focus is on whether the Mother was exercising her custody rights in November, 2016. At the time the Father left the Dominican Republic with the Child there was a shared parenting time order in place which the parties had been abiding by.The testimony of the Maternal Grandfather was that when he arrived at the Father’s home on December 1, 2016, to pick up the Child to commence the Mother’s parenting time, the Father was gone. The Mother was exercising her custody rights when the Child was removed.This Court finds that the Mother has met her burden and established by a preponderance of the evidence that the Child was wrongfully removed from his place of habitual residence. Accordingly, the burden shifted to the Father to prove an exemption or affirmative defense to avoid an order directing the Child’s return to the Dominican Republic.Affirmative DefensesThe affirmative defenses available to the Father under the Convention include (1) the Mother’s failure to petition the Court for the return of the child within one year of removal (Article 12); (2) consent or acquiescence to the removal (Article 13(a)); or (3) it is shown by clear and convincing evidence that the Child would be exposed to either grave risk of physical or psychological harm or an intolerable situation if returned to the Dominican Republic.As to the first defense, the Mother petitioned the Court on August 24, 2017, which was within one year of the Father’s removal of the Child. Accordingly, that defense is not applicable.With respect to second defense, consent and acquiesce to the removal, the Court does not find that Father has met his burden. Although the Father alleges that the parties ultimately planned for the Child to reside in the United States, the Father did not advise the Mother that he would be leaving the Dominican Republic with the Child or otherwise secure her consent. At trial, the Father claimed that he told his attorney to inform the Mother that he was leaving. He also testified that he called the Maternal Grandfather to inform him, but no one answered the telephone. The Father does not deny that he made no mention of his plans to leave the country when the parties appeared in Court in October, 2016, to address parenting time.The Paternal Grandmother also testified that she did not tell the Mother, the Maternal Grandfather or the child’s nanny, who had cared for him since he was 6 months old, that they were leaving the Dominican Republic. The Paternal Grandmother testified that the reason they did not inform the Child’s nanny is because she would be sad. However, the Father testified that he told the nanny in the beginning of November, 2016 that he would be leaving with the Child because he had completed his studies.9The credible testimony of both the Mother and the Maternal Grandfather was that they did not know the Child had been removed until the Maternal Grandfather arrived at the Father’s home in the Dominican Republic on December 1, 2016 to pick up the child for the Mother’s parenting time. The Maternal Grandfather testified that upon his arrival the house was empty and the Father did not answer his telephone. The Mother testified that she did not know the child’s whereabouts until approximately one month later when she was informed by the migration office in the Dominican Republic that it had obtained a video showing the Child, Father and the Paternal Grandmother in the airport. Although the Mother then knew that the Child was in the United States, she claims she did not know where in the United States until February, 2017, when she was served with the Father’s Nassau County Family Court petition for custody.10 The witnesses testifying on behalf of the Mother also testified that the Mother did not know where the Child was after the removal and testified to her efforts to locate the Child.The Mother further denies signing the documents which the Father presented at the airport which allowed him to leave the country with the Child with her purported consent.11 The Father does not allege that he saw the Mother sign documents but testified that he believed she had. The Father testified that after the Child was turned away from the airport on November 24, 2016, he contacted his attorney and was advised to meet with him at a different office. The Father claims that he signed some papers before two witnesses he had never met previously and was given an envelope with documents which he never looked at. The Father testified that he brought those documents to the airport on November 30, 2016 and handed them to authorities without ever having reviewed them. The Father testified that he was not aware that the Mother had filed an impediment preventing him from traveling with the Child. Shortly after the Father removed the Child, the Mother filed an application under the Hague Convention for the return of the Child.The credible testimony established that the Mother did not acquiesce or consent to the Child’s removal.The final defense, delineated under Article 13 of the Convention, provides that the Court need not direct the return of the Child if the Respondent, in this case the Father, establishes based upon clear and convincing evidence (42 U.S.C. §11603(e)(2)) that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”The Court must carefully consider the evidence presented and whether it constitutes a grave risk to the child. While the exception often requires testimony which goes to the merits of the custody dispute, the Court must be careful not to conduct a custody trial or to make a determination based upon the best interests of the child which directly conflicts with the Hague Convention’s objective to ensure the rights of custody under the law of one contracting state are respected in the other contracting state. See: Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Galit Moskowitz, The Hague Convention on International Child Abduction and the Grave Risk of Harm Exception Recent Decisions and Their Implications on Children from Nations in Political Turmoil, 41 Fam. Ct. Rev. 580, 581 (2003).Although there is an inherent risk in hearing testimony which would impact the best interests of the child, the intent and limitations of the Article 13(b) grave risk or physical harm exception is clear:This provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court’s determination. The person opposing the child’s return must show that the risk to the child is grave, not merely serious.Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494-01.The grave harm exception must be narrowly construed and should apply only to harm “that also amounts to an intolerable situation.” Thomson v. Thomson, 119 D.L.R.4th 253 (Can.1994). The exception was intended to be narrow and limited:A review of the deliberations on the Convention reveals that “intolerable situation” was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an “intolerable situation” is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child’s return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an “intolerable situation” and subjected to a grave risk of psychological harm.Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494-01The parent opposing the Child’s return must show that the risk to the child is grave, not just serious, and the harm must be more than a potential harm. (See: Hazbun Escaf v. Rodriguez, 200 F. Supp. 2d 603 (2002) [child ordered from the United States back to Columbia despite travel warning advising that U.S. citizens in Columbia are the victims of threats, kidnappings, highjackings and murders]; Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (2002), [child ordered back to Argentina despite violent demonstrations in the streets, lack of confidence in the economic system, instability and school strikes]; In re Lozano, 800 F. Supp. 2d 197). There must be a direct threat to the Child upon his return to the Dominican Republic in order for this exception to apply.While the Father testified that the Child has more opportunities available to him in the United States, same does not fall within the grave risk exception. However, the Court carefully considered the testimony of the Father and the Paternal Grandmother regarding allegations that the Mother abused or neglected the Child and that the Dominican Republic authorities did not satisfactorily address these allegations.The Paternal Grandmother testified that during the period of September, 2016 through November, 2016, while she was visiting the Dominican Republic and the parties were sharing parenting time with the Child, the Child returned to the Father’s home with rashes, bug bites, a burn and ear infections. She testified that the Father took the Child to the pediatrician, Dr. Hernandes, but did not tell the pediatrician about the burn. After reviewing the Child’s medical records which were in evidence, the witness did not observe any entries from Dr. Hernandes relating to same.The Paternal Grandmother also testified that the Father did not call the police or report the abuse to CONANI, a government agency similar to child protective services, but stated that he had filed papers with the child care counsel. No papers or reports to the child care counsel were offered into evidence during the trial. On cross examination, the Paternal Grandmother stated that she was not accusing the Mother of mistreating the Child, only stating what she observed on the Child’s skin. She testified to other occasions where the child was wearing only shorts and sandals in heavy rain, causing him to suffer pneumonia. The witness claimed that the Child suffered from pneumonia in October or November of 2015 and that the Child was taken to the pediatrician. Upon her review of the Child’s medical records she saw no entries or records of pneumonia during that time and acknowledged that the Mother was in Rochester, New York during the relevant time period. She testified that the Child was nervous to spend time with the Mother and cried to the Father, saying he did not want to see her.The Paternal Grandmother further testified that since November, 2017, after the Mother came to the United States, the Child was happy when he went to visit the Mother but would return angry and sad. She testified to the loving relationship that the Father and Child share and testified that the Father did everything for the child, acting as both Mother and Father. Although she was not present during the March, 2016 altercation which led to the reciprocal Orders of Protection, she testified that the Father told her the that the Mother was trying to “kill” him.The Father presented photographs of the Child depicting unclean fingernails, an ear infection, mosquito bites, scabbing, cuts, burns and rashes. The Father testified that was the condition the Child was in when he returned from the Mother’s care in 2016. The Father testified that he went to court representatives with the Child, to the police and to child protective services but that no assistance was provided to him. The Father did not provide any records of said reports. On cross examination, the Father testified that the child is considered to be hypersensitive to mosquito bites and that the scars on his body were caused by scratching scabies. He testified that the Child had only one ear infection and although he does not know with certainty what caused it, he concluded it was the Mother’s fault. The Child’s medical records were reviewed and the Father testified that the pediatrician’s records stated that the Child was regularly brought to his office as a healthy child who was at times afflicted by allergies to insect bites. There was no mention of any burns or any child abuse. The Father testified that since November, 2017, the Child cries, screams and begs the Father to not make him see the Mother before the Mother’s parenting time. He testified that the Child returns from visits with the Mother angry and sad.The Mother presented testimony from two long time friends of hers whom reside in the Dominican Republic, one of whom is the Child’s godmother. Both witnesses testified that the Mother is an excellent Mother and they have observed her interact with the Child in the Dominican Republic in a loving and nurturing manner. They both testified that the Mother’s method of discipline is talking to the Child about his behavior. They observed the Child to be happy in her care. Both witnesses testified that they trust the Mother who provided childcare for both of their young children and had no concerns with her doing so.The Maternal Grandfather also testified to the close relationship between the Mother and the Child which he personally observed, spending time with them nearly every day. He offered testimony as to her cooking for the child, playing interactive games, singing to him and of the fun they had together. The Mother offered into evidence photographs of the Mother and the Child in the Dominican Republic smiling and playing together.One of the Mother’s witnesses, Ms. DL, is both the Child’s Godmother and an obstetrician-gynecologist in the Dominican Republic. She testified that shortly after the Mother returned to the Dominican Republic in February, 2016, the Mother brought the Child to her when the Mother noticed the Child had rashes on his skin and legs which he complained were itching him. The witness testified that she examined the Child and gave the mother a nonprescription cream to apply to the Child’s skin. She testified that the Mother took the child to the pediatrician thereafter at which time she was given a cream which cleared up the rashes.As to the Order of Protection incident, the Father testified that in March, 2016, the Mother appeared at his home without notice to see the Child and the Father advised her that he had an appointment with the Child that they could not miss. The Father testified that the Mother lunged at him and slapped him four times while he was holding the Child. He testified that she then lunged at him with a paint brush into his chest and the Child’s nanny stopped her. He called the police and the Mother left. The police arrived 20 minutes later and took no action. The next day, the Father requested an Order of Protection and reciprocal orders were granted even though the Mother had not sought an Order. The Father testified that the Paternal Grandmother’s claim that the Mother tried to “kill” the Father during that altercation was too strong, and that she was just trying to hurt him.The Father also testified that he did not believe the court in the Dominican Republic did or would do anything about his concerns. However, the Father offered no credible evidence that the courts failed to act on a legitimate threat to safety of the Child. He offered no basis for this Court to conclude that the Dominican Republic authorities have not and will not act in the best interests of the Child. In the context of international custody disputes, the United States Supreme Court has noted that “[i]t is the Convention’s premise that courts in contracting states will make this determination in a responsible matter.” Abbott v. Abbott, 560 U.S.1 (2010). The United States Supreme Court in Abbott further addressed this concern in stating “judicial neutrality is presumed from the mandate of the Convention, which affirms that the contracting states are ‘firmly convinced that the interest of the children are of paramount importance in matters relating to their custody.” Convention Preamble, Treaty Doc., at 7.” The Father has not established a sufficient basis for this Court to disregard that presumption.It is not lost on the Court that the Father testified that his ultimate decision to leave the country was because “it was time”, not because of any imminent fear or danger to the Child. The Father testified that in November, 2016, he spoke to the Child’s nanny and said he “culminated his studies and it was simply time to just go home.”12 The Paternal Grandmother also testified that she believed she, the Father and the Child were “in great danger” but testified that the plan was to leave the Dominican Republic because the Father had completed school.The Father offered the testimony of an expert witness he retained, Susan Silverstein, LCSW, an expert in the field of forensic evaluations and children’s mental health. Ms. Silverstein interviewed the Father, his parents and the Child. She never interviewed or observed the Mother. She met with and observed the Child on three occasions for approximately twenty five or thirty minutes over two days. She testified that in her opinion a removal from the Father would cause the Child emotional distress due to the close bond they share. She further testified that the Child was comfortable in his current environment and thriving. The witness testified that the Child was not willing to engage in conversation about the Mother and that when she was brought up, the Child had a “disenchanted affect.” She concluded that the Child was suffering trauma due to the relationship with the Mother but testified that the cause of that trauma cannot be clinically ascertained. On cross examination, the witness testified that the trauma could be because the Child is used to being with both of his parents, or it could be because he does not see the Mother, or it could be some other reason. She further testified that the Child referred to the Father’s girlfriend as “mommy” and that although she told the Father this is not appropriate, stopping it may pose a problem due to the Child’s fragility and his wanting a “mommy.” She also testified that the Child’s behavior reflected feelings of abandonment, and it was fair to say the Father’s action in removing the Child could be the cause and not just the Father’s belief that the Child feels abandoned due to the Mother’s decision to remove herself from his life. The expert testified that she was tasked with assessing the Child’s comfort and emotional well being in his current environment.The Court finds the testimony of the expert to be credible. However, the Court notes that the expert’s observations and analysis were limited. The purpose for which she was retained was limited to assessing the Child’s emotional well being and current environment. Therefore, her testimony is only of minimal use to the Court. The expert was not retained to identify the source of the Child’s trauma nor did she conclude that it was the result of the Mother’s abuse or neglect. The Court is not convinced that the Child’s reaction to the mention of the Mother is because of abuse or neglect at the hands of the Mother. The expert agreed on cross examination that while she believed the Child’s trauma related to the Mother, it could be because of the trauma of the removal or some other reason. In fact, in Abbott v. Abbott, 560 U.S.1 (2010), the United States Supreme Court acknowledged the various studies which have shown that separation by abduction can cause acute stress disorder, posttraumatic stress disorder and identity issues.The Court further finds that the Child’s comfort in his current environment is not a basis for the Child to remain in the United States. Whatever re-adjustment period the Child may have to undergo in the Dominican Republic is not considered a “grave harm” under the Convention. It is an unfortunate consequence that nearly every Child wrongfully removed must experience. Nonetheless, it is well established that the “harm” set forth in the grave harm exception must be “greater than would normally be expected on taking a child away from one parent and passing him to another.” Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017) (quoting Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000)). See also: In re A., 1 F.L.R. 365, 372 (Eng.C.A. 1988); Nunez-Escudero, 58 F.3d 374 (8th Cir. 1995).Although the Court is mindful of the real concerns and challenges the Child will face in adjusting to a new environment, the Court cannot say that it poses a grave risk to the Child as contemplated by the Convention. The Father has not demonstrated that the Child will suffer intolerable conditions or grave harm if returned to the Dominican Republic and therefore he has not established an affirmative defense to the Child’s return.Finally, pursuant to Article 13 of the Convention, the Court may refuse to order the return of the child if it finds that the child objects to the return and has attained an age and degree of maturity at which it is appropriate to take account of its views. The Child at issue is five years old and neither party has argued that the Child is of an age and maturity at which it is appropriate to account for his views. Nonetheless, the Court conducted an in camera with the Child to make that determination and finds that he lacks the maturity for the Court to consider his views and/or preferences in rendering a decision.CONCLUSIONThis Court finds, after a careful consideration of all the facts and evidence presented and after assessing the credibility of each witness, that the Mother has established by a preponderance of the evidence each required element under the Hague Convention. The Mother has established that the Dominican Republic is the Child’s habitual residence, that the Child’s removal was in breach of her custody rights and that she was exercising those rights when the Child was removed. The Father has not established, by clear and convincing evidence, that the Child will be subjected to a grave risk of harm if he returns to the Dominican Republic or any other affirmative defense. For these reasons, it isORDERED, that the Father shall produce the subject child, JF, Jr. (DOB: X/XX/XXXX) before this Court, Part 29 of the Supreme Court, Nassau County, 400 Country Seat Drive, Mineola, New York 11501 on Friday, May 11, 2018 at 9:15 a.m. to be returned to the Dominican Republic in the company of the Mother; and it is furtherORDERED, that the parties and their respective counsel shall appear in Part 29 of the Nassau County Supreme Court, 400 Count Seat Drive, Mineola, New York 11501 on Friday, May 11, 2018 at 9:15 a.m.; and it is furtherORDERED, the Child shall be returned to the Dominican Republic in the Mother’s care on or before May 17, 2018 and the Mother shall keep the Father apprised of the child’s whereabouts in the Dominican Republic; and it is furtherORDERED, that the Office of Court Security of the Matrimonial Center, Supreme Court, Nassau County, shall release the Child’s passport to the Mother immediately upon her request and upon proper proof of identification; and it is furtherORDERED, that the Father may make an application to the Court for the release of his passport on or after May 22, 2018; and it is furtherORDERED, that this decision is not a determination on the merits of the custody or the fitness of either party and should in no way be interpreted as one (See: Article 19 of the Convention; Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012). The issue of custody of the Child, which country the Child should ultimately reside and what is in the Child’s best interests is a matter left to the courts of the Dominican Republic (See: Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999).NOW THEREFORE, TO ANY PEACE OFFICER IN THE STATE OF NEW YORK AND TO ANY FEDERAL OFFICER: You are hereby commanded to enforce the instant order allowing the Mother to remove the subject child from the United States of America, and to allow the Mother to accompany the Child to the Dominican Republic.This constitutes the Decision and Order of the Court.Dated: May 8, 2018Mineola, New YorkENTER:
