Davy Van De Sande v. Jennifer Van De Sande

431 F.3d 567 (2005)

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Nature of the Case

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Facts

H and W married and had two children. H was a Belgium native. The couple and the children lived in Belgium. When they visited W’s family in the U.S., W told H that she and the children would not go back to Belgium. In 2004, during a visit to Jennifer's parents, Jennifer told Davy that she and the children would not return to Belgium. H threatened to kill the children. He had earlier threatened to kill W. And the next day, in a conversation with W's brother, he threatened to kill 'everybody.' W told her father about H's threats, and the police were called and an officer escorted H from the house. H returned to Belgium and petitioned under the International Child Abduction Remedies Act (ICARA) for custody of the children ex parte W. H was awarded custody of the two children by a Belgian court. W refused to give them up. H brought this suit in the U.S. to get the children back under the remedy of return. An abductor has a narrow defense: 13(b) of the Convention excuses return if '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 abductor must prove this by clear and convincing evidence. Jennifer presented six affidavits--two by her and one each by her father, her mother, her brother, and a friend. The affidavits paint a consistent and disturbing picture. According to them, H began beating W shortly after their marriage in 1999. The beatings were frequent and serious. For example, when she was seven months pregnant with their first child, H slammed W's head against a wall, choked her, and pushed her toward the top of a flight of stairs, threatening to topple her down them. The beatings occurred several times a week throughout the marriage whenever the two of them were together, continued when they moved from the United States to Belgium. H's mother joined in beating W, her daughter-in-law. W complained several times to the Belgian police, but they said they could do nothing unless she went to a doctor to verify her injuries; and she did not do that. The continued after the two children were born, and were often done in their presence, which caused them to cry. The older child (born in August 2000, so 4 years old when her mother refused to return to Belgium in October 2004) would tell her father to stop, but without success. Physical abuse of the daughter by her father began when she started wetting her bed. He would spank her, and once when W entered the girl's bedroom and told H to stop beating their daughter he grabbed W by the throat and shoved her out of the room. Once he struck the daughter a sharp blow to the side of her head. His mother (the daughter's grandmother) struck the daughter in the head at least twice. H also abused W verbally in the children's presence, calling her a 'cunt,' 'whore,' 'lazy fucking bitch,' and 'lazy fat bitch.' The district court granted summary judgment for H in that there was no evidence that the Belgian legal system cannot or will not protect the children.