Etienne Jean Poix v. Espaillat Santana

Background

Joseph Marcel Etienne Jean Poix and Susibel Altagracia Espaillat Santana were married in the Dominican Republic from 2014 to 2020 and had two children, identified in the opinion as M.G.E. and A.F.E. The children were born in the United States but, apart from the first one or two months of their lives, lived in the Dominican Republic. After the parties separated and later divorced, Santana traveled with the children from the Dominican Republic to the United States in August 2021. They remained in the New York City area.

Poix filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, seeking the children’s return to the Dominican Republic. The court held a bench trial, meaning a trial decided by the judge rather than a jury. The court stated that this proceeding concerned only whether the children had been wrongfully removed under the Convention and whether an exception to return applied. It did not decide which parent should have custody or what upbringing would be in the children’s best interests.

Wrongful Removal

The court explained that Poix had to prove three things: the children were habitually resident in the Dominican Republic; their removal breached his custody rights under Dominican law; and he was exercising those rights when the children were removed. Santana conceded the first two elements.

The court found that the Dominican Republic was the children’s habitual residence because they lived, attended school, and went to daycare there, and because both parents had intended the children to live there. The court also found that Poix retained parental authority after the divorce. Under Dominican law, that authority gave him a right to prevent the children from leaving the country without his written consent. Because Santana removed the children without that consent, the removal breached Poix’s custody rights.

The court found that Poix was exercising those rights. Before the removal, he regularly visited the children, spent time with them at parks and other activities, worked at their school, helped care for them, contributed to childcare expenses, participated in their education and medical care, and helped when they were ill. Although he did not see the children in person after June or early July 2021, the court found that he continued trying to maintain contact and repeatedly asked to visit them. The court concluded that these efforts were enough to show that he was exercising his custody rights when the children were removed.

Defenses to Return

Santana raised two exceptions under Article 13 of the Convention. First, she argued that Poix was not exercising his custody rights. The court rejected that defense for the same reasons it found that Poix had established the exercise of those rights.

Second, Santana argued that returning the children would create a grave risk of physical or psychological harm or place them in an intolerable situation. She had to prove this defense with clear and convincing evidence, a demanding standard requiring the risk to be highly probable or reasonably certain. The court considered her allegations about an incident of spousal violence, a 2017 gathering where some adults smoked marijuana, Poix’s refusal to use telephone or video contact during a period, and other alleged conduct during the marriage. Even assuming the alleged spousal-violence incident occurred as Santana described it, the court concluded that the evidence did not show a sufficiently high likelihood that the children would face severe harm if returned. The court also found no evidence that Poix had abused the children and credited evidence of his loving relationship with them.

Ruling

Judge John P. Cronan granted Poix’s petition and ordered Santana to return the children to the Dominican Republic by November 7, 2022. The court ordered that the children could not be removed from New York before their return and directed that the passports in the court’s possession be released to Santana to facilitate travel. The court expressly stated that its order was not a decision on the underlying custody dispute, which it said should be resolved by the family courts of the Dominican Republic. The opinion also set deadlines for Poix to request payment of necessary expenses and for Santana to object to any such request.