Intimate partner violence should have prevented a judge from awarding a man more than $283,000 in fees and costs in an international child custody dispute, a federal appeals court said Friday.
The U.S. Court of Appeals for the Second Circuit vacated the award under The International Child Abduction Remedies Act (ICARA) to petitioner Abdullah Naghash Souratgar, who had prevailed in a custody action against Lee Fair Jen over their son.
Because the record showed that Souratgar “committed multiple, unilateral acts of intimate partner violence” against Lee, the court said the award of costs was, in the words of ICARA, “clearly inappropriate.”
Judges Robert Katzmann, Raymond Lohier and Christopher Droney made that decision in Souratgar v. Fair, 14-904, reversing Southern District Judge P. Kevin Castel’s ruling in February 2014.
Souratgar, an Iranian national, and Lee, a Malaysian national, were married in Singapore in 2007. Lee was pregnant in 2008 when she said Souratgar began abusing her, including punching and kicking her and subjecting her to sexual assault—allegations, most of which, Souratgar denied.
Their son, Shayan, was born in January 2009. Lee left the home with Shayan in 2011 and left Singapore with him in 2012.
Souratgar petitioned in New York for the return of Shayan and, after a nine-day hearing that both attended, Castel concluded that Souratgar had made out a prima facie case under the Hague Convention on the civil aspects of international child abduction for the return of Shayan. As part of his ruling, Castel found Lee failed to establish affirmative defenses, including that she had been abused.
The Second Circuit affirmed (NYLJ, June 17, 2013) and the case went back to Castel, who then awarded $283,067.
ICARA, 22 U.S.C. §9007(b)(3), is domestic implementing legislation for the Hague convention. It states that the costs incurred by a successful petitioner in seeking the return of an abducted child, including legal fees and transportation, shall be paid by the respondent “unless the respondent establishes that such order would be clearly inappropriate.”
Under Article 13(b) of the convention, a signatory state, in this case the United States, need not order the return of a child “if there is a grave risk that his or her return would pose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Castel rejected Lee’s claim under 13(b), finding no danger to the child. The judge said he was skeptical of the abuse allegations, saying “both parties have exaggerated their claims.” While he credited some of Lee’s claims of violence, in the end, he determined that Lee failed to establish “that the past abuse of her was causally related to her decision to leave Singapore with her son.”
But Katzmann, writing for the panel, said, “Where, as here, the respondent’s removal from the habitual country is related to intimate partner violence perpetrated by the petitioner against the respondent, the petitioner bears some responsibility for the circumstances giving rise to the petition,” a concept it said was “analogous to the equitable doctrine of unclean hands.”
While ICARA’s fee-shifting provision adds an additional deterrent to the law’s “overall purpose of discouraging parents from taking their custody battles across international borders,” Katzmann noted, Congress never said that fees must be awarded; it added the caveat that a judge should not award fees if they are “clearly inappropriate.”
Such an award, based on the record, was clearly inappropriate here, he said, and thus the lower court exceeded its discretion.
The circuit differed from Castel’s finding that the abuse was not causally related to Lee’s decision to take Shayan out of the country. “We find that Lee’s testimony shows, and Souratgar does not genuinely dispute, that her departure was related to Souratgar’s history of intimate partner violence.”
“Finally, we note that intimate partner violence in any form is deplorable,” Katzmann wrote. “It can include a range of behaviors, from a single slap to a lethal blow. However, we need not determine in the matter at hand what quantum of violence must have occurred to warrant a finding that fees are ‘clearly inappropriate,’ given the repeated violence established in the record here. Those determinations we leave to be resolved as they arise in future cases.”
But “given the record in this case, we cannot envision a scenario where an award of expenses would not be clearly inappropriate,” he said.
In a concurrence, Lohier wrote to “emphasize that the majority opinion is extremely narrow in scope and confined to its particular facts, and to counsel district courts and panels of our court not to draw from it any rule or presumption against awarding fees whenever a winning petitioner engages in acts of repeated ‘unilateral violence’ against the losing respondent.”
“As my colleagues in the majority recognize, such a presumption would conflict with traditional principles of equity that already permit district courts to consider such deplorable conduct in determining fee awards,” Lohier said.
Robert Arenstein, who represented Souratgar, said there was no domestic violence in the case, and the allegations were a pretext for Lee to leave the country.
“I’m not happy with this decision,” Arenstein said. “What it’s going to do is dissuade lawyers from handling Hague cases because they’re not going to be awarded fees. The circuit didn’t even remand the case. It seems like the domestic violence lobby has gotten to the Second Circuit.”
Gary Serbin, partner and Nicole Schiavo, senior associate, at Hogan Lovells represented Lee.
– See more at: http://m.newyorklawjournal.com/#/article/1202753243950?kw=Abusive%20Husband%27s%20Award%20Found%20%27Clearly%20Inappropriate%27&cn=20160328&pt=Personalized&src=EMC-Email&et=editorial&bu=New%20York%20Law%20Journal&slreturn=20160228073641&_almReferrer=