Miltiadous v. Tetervak
686 F. Supp. 2d 544, 2010 U.S. Dist. LEXIS 15731, 2010 WL 597243 (2010)
Rule of Law:
The Hague Convention's prompt return mandate is subject to an affirmative defense where a court may deny a petition for the return of children if the respondent demonstrates by clear and convincing evidence that their return to the country of habitual residence would expose them to a grave risk of physical or psychological harm, particularly when severe spousal abuse has been witnessed by the children, leading to documented psychological trauma, and authorities in the habitual residence are unable or unwilling to offer adequate protection.
Facts:
- Miltiadis Achillea Miltiadous (Petitioner), a Cyprus citizen, and Inna Tetervak (Respondent), a Russian citizen, married in Cyprus in November 2000 and lived there until November 2007.
- Miltiadous and Tetervak had two children, Iliana and Aehilleas, born in Cyprus in 2002 and 2004, respectively, and both are Cyprus citizens.
- Throughout their marriage, Miltiadous was an avid drinker and habitual drug user who physically and psychologically abused Tetervak, often harassing the children by yelling and threatening to take them away.
- On November 23, 2007, the family departed Cyprus for a temporary vacation to visit Tetervak's extended family in the United States, having purchased return airline tickets for January and February 2008.
- On December 1, 2007, while in the United States, Miltiadous returned to Tetervak’s parents’ home drunk and aggressive, leading Tetervak to call the police, after which Miltiadous left to stay with his cousins in New Jersey.
- Tetervak filed for political asylum in the United States on May 9, 2008, fearing imminent physical and mental abuse by Miltiadous in Cyprus, and was granted asylum for herself and her children on July 22, 2009.
- Iliana, the older child, was diagnosed with Chronic Post Traumatic Stress Disorder (PTSD) by a licensed psychologist, stemming from witnessing the domestic violence between her parents in Cyprus.
Procedural Posture:
- On December 10, 2007, Miltiadous was served with a “Notice of Hearing and Order” for temporary restraints, issued by the Pennsylvania Court of Common Pleas.
- On December 14, 2007, after a hearing, the Court of Common Pleas in Philadelphia issued a Protection from Abuse Order against Miltiadous, granting Tetervak sole custody of the children and supervised visitation for Miltiadous.
- On April 9, 2008, Miltiadous filed an Application for Relief under the Hague Convention through the Cyprus Ministry of Justice.
- On February 13, 2009, a family court in Cyprus issued an order demanding Tetervak return the children to Cyprus.
- On November 14, 2008, Miltiadous filed a Petition for Return of Children (doc. no. 1) in the United States District Court for the Eastern District of Pennsylvania, seeking the return of his children to Cyprus under the Hague Convention.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the grave risk of harm affirmative defense under Article 13(b) of the Hague Convention apply, thereby justifying the denial of a petition for the return of children to their country of habitual residence, where the respondent presents clear and convincing evidence of the petitioner's history of spousal abuse, the children's exposure to such abuse resulting in documented psychological trauma for one child, and concerns regarding the ability of authorities in the country of habitual residence to provide adequate protection?
Opinions:
Majority - Eduardo C. Robreno, District Judge
No, the grave risk of harm affirmative defense under Article 13(b) of the Hague Convention does apply, justifying the denial of the petition for the return of Iliana and Aehilleas Miltiadous to Cyprus. The Court first found that Miltiadous established a prima facie case for wrongful retention, concluding that Cyprus was the children’s habitual residence prior to December 10, 2007 (the date of wrongful retention), and Miltiadous was exercising his custody rights under Cyprus law. However, the Court then determined that Tetervak successfully proved by clear and convincing evidence that returning the children to Cyprus would expose them to a grave risk of physical or psychological harm. This finding was based on: (1) Miltiadous's extensive history of physical and emotional abuse towards Tetervak throughout their marriage, much of which was witnessed by the children, compelling a finding of grave risk consistent with cases like Van De Sande v. Van De Sande and Walsh v. Walsh; (2) evidence suggesting that Cyprus authorities were unable or unwilling to protect Tetervak, implying similar risks for the children as considered in In re Adan; and (3) compelling expert psychological testimony that the daughter, Iliana, suffers from Chronic Post Traumatic Stress Disorder (PTSD) directly linked to witnessing family violence, and her return to Cyprus would trigger a severe psychological relapse, a factor supported by Danaipour v. McLarey and Blondin v. Dubois. Even without definitive evidence of PTSD for the younger son, Aehilleas, the Court concluded that returning him to Cyprus would also pose a grave risk of physical and psychological harm due to Miltiadous's violent pattern and the likely separation from his mother and sister. Given these circumstances, the Court held that Tetervak satisfied the grave risk of harm affirmative defense.
Analysis:
This case significantly reinforces the application of the grave risk of harm defense under the Hague Convention, particularly emphasizing that severe psychological trauma to children from witnessing domestic violence constitutes a grave risk, even if they are not directly abused. It highlights the importance of expert psychological testimony in establishing such harm and considers the potential inadequacy of protections offered by authorities in the country of habitual residence. The ruling underscores that separating siblings due to differing risk assessments is generally disfavored, broadening the interpretation of 'grave risk' to include indirect psychological harm and potentially making it easier for respondent parents to invoke this defense in future child abduction cases involving domestic violence.
