ALEJANDRO A. DÍAZ-ALARCÓN, Petitioner, Appellant,
MICHELLE S. FLÁNDEZ-MARCEL, Respondent, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District
Maricarmen Carrillo-Justiniano for appellant.
P. Lausell Recurt, with whom Rafael E. Rodríguez
Rivera and Legal Aid Clinic, Community Law Office, Inc.,
Inter-American University of Puerto Rico were on brief, for
Thompson, Kayatta, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
not every day that a child-custody fight ends up in federal
court. But here we are. Invoking the Hague Convention on the
Civil Aspects of International Child Abduction
("Convention"), see Oct. 25, 1980,
T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, reprinted in
51 Fed. Reg. 10494-01 (Mar. 26, 1986), and its implementing
statute, the International Child Abduction Remedies Act
("ICARA"), see 22 U.S.C. §§
9001-11, Alejandro Díaz-Alarcón seeks return of
his daughter from the United States to Chile. To protect her
privacy, we will call the daughter "ADF." Opposing
Díaz-Alarcón is ADF's mother, Michelle
Flández-Marcel. A federal district judge denied
Díaz-Alarcón's petition. He appeals. We
one hundred countries - including the United States and Chile
- are contracting parties to the Convention. See
Status Table, HCCH,
(last visited Nov. 26, 2019). Broadly speaking, the
Convention aims to deter parents from abducting their
children to a country whose courts might side with them in a
custody battle. See Darín v. Olivero-Huffman,
746 F.3d 1, 7 (1st Cir. 2014); see generally Mozes v.
Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001) (noting that
"[d]espite the image conjured by words like
'abduction' and 'force,' the Convention was
not drafted in response to any concern about violent
kidnappings by strangers" - instead, "[i]t was
aimed . . . at the unilateral removal or retention of
children by parents, guardians or close family members"
(some quotation marks omitted)). A federal statute - ICARA -
implements the Convention by (among other things) allowing a
parent to petition a federal or state court to return an
abducted child to the child's country of habitual
residence. See 22 U.S.C. § 9003(b). To prevail,
the party seeking relief must establish by a preponderance of
the evidence that the abductor "wrongfully removed or
retained [the child] within the meaning of the
Convention." Id. § 9003(e)(1).
petition-receiving court may not decide who should have
custody, however. See Darín, 746 F.3d at 8;
see also Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir.
2000) (noting that because "[c]ourts are not to engage
in a custody determination," it matters not "who is
the better parent in the long run") (second quotation
quoting Núñez-Escudero v.
Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995)). And
with narrow exceptions, the court must return the child to
her country of habitual residence so that the courts of
that country can decide. See Darín,
746 F.3d at 8 (recognizing that "the Convention
establishes a strong presumption in favor of returning a
wrongfully removed or retained child").
the exceptions, we mention only two. The first is that a
petition-receiving court need not order a return if
"there is a grave risk that . . . return would expose
the child to physical or psychological harm or otherwise
place the child in an intolerable situation,"
see Convention, art. 13(b) - and it's important to
keep in mind (for reasons that will become clear later on)
that when the alleged type of risk is "sexual abuse of a
young child," the "policy of this country in
enforcing the . . . Convention . . . is to view sexual abuse
as an intolerable situation." See Danaipour
v. McLarey, 286 F.3d 1, 14-15 (1st Cir.
2002) (from now on, Danaipour I). The second is
that a petition-receiving court need not order a return if
"the child objects to being returned and has attained an
age and degree of maturity at which it is appropriate to take
account of [his or her] views." See Convention,
not to diminish the Convention's policy against unsavory
forum shopping, courts construe these exceptions narrowly,
see Nicolson v. Pappalardo, 605
F.3d 100, 105 (1st Cir. 2010) - plus all facts supporting the
grave-risk exception must be proved "by clear and
convincing evidence, " and all facts supporting the
child-objection exception must be proved "by a
preponderance of the evidence." See 22 U.S.C.
§ 9003(e)(2)(A), (B).
and Flández-Marcel are Chilean nationals.
Flández-Marcel gave birth to their daughter, ADF, in
2008, in Santiago, Chile. Díaz-Alarcón and
Flández-Marcel married in 2009, separated in 2011, and
divorced in 2014. They agreed that Flández-Marcel
would have patria potestad (meaning "parental
power") over ADF, but that Díaz-Alarcón
would have a "direct and regular relationship" with
ADF through scheduled visits.
to 2011, after Díaz-Alarcón and
Flández-Marcel had separated. Flández-Marcel
met and began dating Héctor Pérez-Babilonia, a
Puerto Rico resident. ADF eventually started spending time
with Pérez-Babilonia. And in 2013
Díaz-Alarcón overheard ADF call
Díaz-Alarcón, in his own words, "told
[ADF] off," explaining that Pérez-Babilonia
"wasn't her dad."
months later, Flández-Marcel had ADF evaluated by a
child psychologist. And ADF got diagnosed with a possible
"[a]djustment [d]isorder." The staff there also
Flández-Marcel, and Pérez-Babilonia.
Díaz-Alarcón said that both he and
Flández-Marcel had verbally and psychologically abused
each other. Flández-Marcel, for her part, accused
Díaz-Alarcón of psychologically abusing her.
After the interviews, a social worker concluded that ADF had
[a]lienation [s]yndrome, which describes the change that
occurs when there are conflictive marital break ups, in which
the children censure, criticize or reject one of their
parents in an unjustified and/or exaggerated manner. This
implies that one parent systematically and consciously
programmes the children to denigrate the other.
social worker said that "it was demonstrated" that
Díaz-Alarcón had not "mistreat[ed]"
ADF, though adding that "it was demonstrated that the
parents handled the family dynamic badly, often being prone
to including the girl in conflicts between [them]."
forward to 2014, a couple of weeks after
Díaz-Alarcón and Flández-Marcel got
divorced. Flández-Marcel asked the authorities in
Santiago to issue a protective order for ADF and her against
Díaz-Alarcón, accusing him of having committed
the crime of "threatening with no aggravating
circumstances against persons" (excess capitalization
omitted). The authorities issued the protective order,
telling the police to give "priority status" to
calls from Flández-Marcel and to "periodic[ally]
patrol" her neighborhood. But they eventually closed
the matter after the investigation unearthed no
"information required to continue the case."
months later, in 2015, just before she married
Pérez-Babilonia, Flández-Marcel asked a Chilean
family court for permission to move to Puerto Rico for one
year with ADF. In her petition, Flández-Marcel claimed
that Díaz-Alarcón could not "be
located." After somehow learning about the petition,
Díaz-Alarcón formally opposed
Flández-Marcel's request in papers filed with the
court, saying she knew where he was and accusing her of being
an unfit mother. The Chilean court then ordered
Flández-Marcel to undergo a psycho-social evaluation,
focusing on her parenting skills. A social worker interviewed
ADF as part of the process. And ADF told her that
is a fighter[;] he always hits with a closed fist. I've
seen it. If I say something to him, he hits me. If I ask him
a question, he hits me. If I ask him if we can go to the
park, he hits me. That's how he was taught; violently.
His mum and dad told me. Some other days he does not hit.
by the social worker "to think of some positive aspects
of her dad," ADF said that Díaz-Alarcón is
"a happy and loving person" who "gives
kisses" and "affection." But she added that he
"doesn't listen" when she tells him "he
shouldn't hit [her] anymore."
reviewing the evaluation, the Chilean court pushed
Díaz-Alarcón and Flández-Marcel to reach
an agreement. And they eventually did, agreeing, for example,
that Flández-Marcel could take ADF to Puerto Rico from
December 26, 2015 to March 26, 2016 and that
Díaz-Alarcón would have "constant
communication" with ADF as well as "additional days
of visits" when she returned to Chile. The Chilean court
entered the agreement as a final and enforceable judgment.
to Díaz-Alarcón, Flández-Marcel and ADF
were supposed to fly to Puerto Rico on December 26. But
because the two did not have return tickets, they could not
board the plane. So they flew out on December 27 instead.
there, Flández-Marcel enrolled ADF in school for the
semester starting in January 2016. Early in January, ADF had
a Skype call with Díaz-Alarcón.
Flández-Marcel was present too. ADF told
Díaz-Alarcón that she never wanted to speak
with him again. He asked her why. And she, according to
Flández-Marcel, just screamed, "Cut, cut,
cut." So Flández-Marcel cut the call short.
repeatedly asked ADF what was going on. According to
Flández-Marcel, at first ADF would not say. But one
day - after learning that Flández-Marcel was pregnant
- ADF started hitting her and then screamed, "Don't
bathe me, don't bathe me, don't bathe me."
"Who is going to bathe you?" Pérez-Babilonia
asked. "Don't ask me," ADF said.
point (apparently in January or February 2016), ADF told
Flández-Marcel and Pérez-Babilonia the
following - at least according to Flández-Marcel's
expert witness, Dr. Carol Romey: During a visit to his home
when she was 5, Díaz-Alarcón had her take off
her clothes to take a bath. He took off his clothes too, got
into the tub, touched her "private parts," and (per
Pérez-Babilonia) had her touch his. She then saw a
"white-yellow liquid come out of his penis." After,
he beat her ...