Kladny v. Deza

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARTIN KLADNY,
Petitioner,
MEMORANDUM AND ORDER
-against- 	25-CV-5754 (OEM)
ALEXANDRA JAZMIN RUIZ DEZA,
Respondent.
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ORELIA E. MERCHANT, United States District Judge:
Petitioner Martin Kladny (“Petitioner”), a citizen of Argentina, petitions this Court for the
return of his child, M.K.R. (the “Child”), to Argentina pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the “Hague
Convention” or “Convention”) and the International Child Abduction Remedies Act, 22 U.S.C.
§§ 9001 et seq. (“ICARA”). Verified Petition for Return of the Child, Dkt. 1 (the “Petition” or
“Pet.”). Petitioner asserts that the Child has been wrongfully retained in the United States by her
mother, Respondent Alexandra Jazmin Ruiz Deza (“Respondent”), a citizen of Peru who currently
resides in New York.
On October 14, 2025, Petitioner commenced this action,1 and on December 2, 2025,
Petitioner filed a motion for emergency relief. Dkt. 7. On December 3, 2025, the Court issued an
Order to Show Cause and Temporary Restraining Order prohibiting Respondent from removing
the Child from the Eastern District of New York; requiring Respondent to deposit the Child’s
passports and travel documents with the Court; and directing Respondent to appear at a hearing
1 This action was initially assigned to a magistrate judge. On December 3, 2025, this action was reassigned to the
undersigned.
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and show cause why the Court should not grant the relief requested in the Petition on December
10, 2025. Dkt. 8.
Due to service issues, the Court adjourned the deadlines set in the show cause order.
Respondent deposited the Child’s passport, and the Court set a schedule for answering and reply
papers at a conference on December 12, 2025. See Notice of Receipt of Passport, Dkt 14; Minute
Entry, dated Dec. 12, 2025. 	Respondent answered the Petition on December 17, 2025, and
Petitioner filed a reply on December 18, 2025. See Verified Answer to Verified Petition for Return
of the Child, Dkt. 18 (“Ans.”); Verified Reply for Return of the Child, Dkt. 24.
The Court scheduled an evidentiary hearing on the Petition for January 5, 2026, see Minute
Entry, dated Dec. 19, 2025, and with the consent of the parties, the Court adjourned the evidentiary
hearing to January 12, 2026. 	See Minute Entry, dated Dec. 30, 2025. 	Before the evidentiary
hearing, the parties submitted Proposed Findings of Fact and Conclusions of Law. 	See
Respondent’s Pre-Trial Proposed Findings of Fact and Conclusions of Law, Dkt. 53; Petitioner’s
Proposed Findings of Fact and Conclusions of Law, Dkt. 54.
Following a 7-day evidentiary hearing on January 12-14 and 20-23, 2026 (the “Hearing”),
see Transcript of Civil Cause for Evidentiary Hearing (the “Transcript” or “Tr.”),2 the parties filed
written summations. See Petitioner’s Summation, Dkt. 58 (“Pet’r Summ.”); Respondent’s Post-
Trial Written Summation, Dkt. 59 (“Resp’t Summ.”).
This Memorandum and Order sets forth the Court’s findings of fact and conclusions of law.
After careful consideration of the parties’ submissions, the evidence presented at the Hearing, and
the applicable law, the Court finds that: (1) the Child is a habitual resident of Argentina and has
2 The Court refers to the parties’ exhibits admitted into evidence at the Hearing as “Pet’r Ex.” and “Resp’t Ex.,”
respectively. The Court additionally notes that the Transcript pagination stops at page 322 at the end of the hearing
day on January 14, 2026, and begins at page 383 at the beginning of the next hearing day on January 20, 2026. There
are no pages between 322 and 383.
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been retained in the United States; (2) Respondent’s retention of the Child in the United States was
in breach of Petitioner’s custody rights; and (3) Petitioner was exercising his rights at the time of
the retention. 	Additionally, the Court finds that Respondent has failed to show by clear and
convincing evidence the affirmative defenses of grave risk and violation of fundamental freedoms
and human rights. Further, the Court finds that Respondent has failed to show by a preponderance
of the evidence that the Child possesses a sufficient degree of maturity for the Court to consider
her views on return. Accordingly, the Petition for the return of the Child to Argentina is granted.
FINDINGS OF FACT3
A. 2016-2022: The Parties’ Relationship
Petitioner is a citizen of Argentina, and Respondent is a citizen of Peru. Pet. ¶¶ 12-13.
In September 2016, Petitioner and Respondent met at a party. Tr. at 483:1-4. At the time,
both were living in Buenos Aires, Argentina with their families. Id. at 38:16-18, 46:19-21, 483:17-
21. The parties entered into a romantic relationship in December 2016. Id. at 483:8-11.
According to Respondent, several months into their relationship, Petitioner began to exhibit
controlling and aggressive behavior, id. at 483:22-484:5, which she alleges escalated to physical
abuse in May 2017.4
In December 2017, Respondent became pregnant with the Child. Id. at 491:6-8. Shortly
thereafter, the parties moved in with members of Petitioner’s family, and then to their own
3 Unless otherwise indicated, the parties have established the following facts by a preponderance of the evidence. See
22 U.S.C. § 9003(e)(1)(A) (requiring the elements of a petitioner’s prima facie case be proven by a preponderance of
the evidence).
4 Respondent testified that Petitioner physically abused her for the first time in May 2017, when he punched her in the
face after going through her phone. See Tr. at 486:6-487:16; Resp’t Ex. VVV (picture of Petitioner and Respondent
the day after the incident).
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apartment from July to September 2018. 	Id. at 493:15-25, 499:3-20. 	Respondent alleges that
during this time, Petitioner’s abuse continued.5
The Child was born on September 4, 2018, in Buenos Aires. Pet’r Ex. 3 (the Child’s birth
certificate). 	Respondent, along with the Child, moved back in with her parents following the
Child’s birth. Tr. at 500:20-24. Petitioner later moved in with them. Id. at 524:1-10. The parties,
the Child, and Respondent’s parents continued living together in Argentina during the first year of
the Child’s life. 	Id. at 555:5-7. 	During this time, Respondent alleges that Petitioner’s violence
continued and at one point resulted in injury to the Child.6
In August 2019, an economic opportunity was presented to Respondent’s father, and the
family decided to relocate to Trujillo, Peru. Id. at 555:10-17. Petitioner and Respondent married
on August 1, 2019, and the family relocated to Peru one week later. Id. at 59:11-15. In Peru, the
5 Respondent testified that on September 3, 2018, Petitioner pushed her, causing her to fall to floor, and while she was
on the floor, he kicked her twice in the stomach, causing her to be hospitalized. Tr. at 514:4-16. Respondent testified
that this incident occurred the day before the birth of the Child. See id. There was no testimony regarding the impact
of the alleged incident on the birth of the Child, nor did Respondent produce any documentation, medical or otherwise,
related to the incident. See id. at 522:2-3 (“Q: After those few hours [at the hospital], did you ultimately go home? A:
Yes”). 	Moreover, Respondent has provided inconsistent accounts of the incident. 	Compare Pet’r Ex. 97 at 16
(Respondent’s interrogatory response indicating that her parents drove her to the hospital), with Tr. at 514:17-515:4
(Respondent testifying that Petitioner drove her to the hospital and threatened her while doing so). Petitioner denies
getting into a physical altercation with Respondent during her pregnancy with the Child. Tr. at 258:10-14.
6 At the Hearing, Respondent described an incident in October 2018 when Petitioner took 1-month-old Child from her
arms during an argument and “[w]hen . . . he tried to put her in the crib, her head got hit with the side of the crib.”
Tr. at 525:5-15. Respondent alleges that the Child was then taken to the hospital to undergo medical examinations.
Id. at 526:20-527:1.
Respondent additionally offered several photos documenting her own injuries after Petitioner had allegedly struck her
in the face in May 2019. See Resp’t Ex. E; Resp’t Ex. F; Resp’t Ex. G; Resp’t Ex. H; Resp’t Ex. AAAA. However,
several inconsistencies cast doubt on Respondent’s assertion that all the pictures were taken the same day. Tr. at
629:23-631:25 (cross-examining Respondent on inconsistencies related to her nails, piercings, and facial bruising).
In July 2019, Respondent alleges that she was battered by Petitioner while he was driving her and 10-month-old Child
to the pediatrician, forcing her to jump out of the car. Id. at 538:1-539:2. Although the police came to the scene,
Respondent did not make a statement as she was afraid of Petitioner. Id. at 542:15-24. Respondent testified that she
was taken to the hospital by ambulance, id. at 543:16-18, but produced no medical records documenting the incident.
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parties and the Child continued to live with Respondent’s parents. 	Id. at 64:3-6. 	Respondent
alleges that Petitioner continued to physically abuse her while in Peru.7
In November 2019, Respondent traveled to New York to visit a friend but was unable to
return as planned due to Covid-related travel restrictions. Id. at 559:13-16; Ans. ¶ 74. Petitioner,
the Child, and Respondent’s parents remained in Peru together until December 2019.
In December 2019, Petitioner returned to Argentina to continue working as a roof tiler, the
job he previously held. Tr. at 74:5-7, 559:17-23. Petitioner left the Child in Peru under the care
of her maternal grandparents. Id. at 559:17-23.
Petitioner and Respondent reunited with the Child in Peru in December 2020. Id. at 210:11-
211:4. Petitioner returned to Argentina in January 2021, leaving Respondent and the Child in Peru.
Id. at 211:5-6. One month later, Respondent joined Petitioner in Argentina, leaving the Child with
her maternal grandparents in Peru. 	Id. at 132:18-133:24. 	The parties continued their romantic
relationship until July 2021. 	Id. at 560:2-10. 	The parties’ romantic relationship ended in July
2021.8
7 Respondent testified that in September 2019, the parties argued about Petitioner wanting to return to Argentina, and
that when Respondent indicated that she and the Child would not return with him, Petitioner started choking her and
burning the tips of her hair with a lighter. Tr. at 556:24-557:14. Respondent’s mother testified that she did not witness
this alleged incident in progress, but rather, she observed the aftermath with the 11-month-old Child in her arms, who
was asleep and awakened by the sound of Respondent’s mother banging on the parties’ locked bedroom door. Id. at
682:10-15.
8 According to Respondent, the relationship ended on account Petitioner’s violent behavior. 	Tr. at 566:8-11.
Respondent recounted two instances of physical abuse in 2021: a May 2021 incident where Petitioner threw a fire
extinguisher at her as she tried to get out of the car during an argument, and a July 2021 incident when he started
strangling her. Id. at 561:9-16, 565:20-566:7. As alleged by Respondent, these incidents were the result of Petitioner’s
anger at Respondent for getting the Child a United States visa and for Respondent’s desire to start a life in the United
States. Id. According to Petitioner, the parties’ relationship ended on account of Respondent moving to the United
States. Id. at 144:1-7. Both parties agree, however, that the relationship was “toxic.” Id. at 55:12-56:6, 502:24-25.
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In late July 2021, Respondent traveled to Peru to visit the Child and her parents.9 Id. at
581:11-15. After visiting the Child in Peru, Respondent traveled from Peru to the United States
by way of Mexico.10 Id. at 581:16-582:3.
In late 2022, the parties filed a joint divorce petition. Id. at 143:19-144:7.
B. 2023-2025: Life in Argentina and the Custody Agreement
In May 2023, the Child and her maternal grandparents moved back to Argentina, and the
Child continued to live with her maternal grandparents. Id. at 157:17-21.
In July 2023, the parties’ divorce was finalized by an Argentine court. Id. at 146:25-147:5.
Per the parties’ divorce agreement, adopted and approved by an Argentine court, the day-to-day
care provision assigned physical custody of the Child to Respondent under the “unilateral physical
custody modality,” while providing the Petitioner with the “right and duty of fluid visitation with
the [C]hild.” 	Pet’r Ex. 13 at 14, 20 (divorce petition and judicial certification).11 	Respondent
delegated the day-to-day care of the Child to her parents as she remained in the United States. Tr.
at 146:18-20, 157:2-5. As understood by Petitioner, the custody arrangements under the divorce
agreement authorized the Child to live in Argentina but not abroad. Id. at 147:21-148:1.
Petitioner began to spend time with the Child, but conflicts arose with the maternal
grandparents limiting his access to her. Id. at 163:1-164:14.
9 This was the last time Respondent saw the Child in person until January 2025. See Tr. at 480:19-22 (Respondent
testifying that she has lived in New York since 2021).
10 Following a period of detention by immigration officials, Respondent was released in Arizona and flew to New
York, where she has remained since. Tr. at 583:5-10.
11 Petitioner contends that he did not understand the child custody terms of the agreement when he first signed it. Tr.
at 146:14-20. According to Petitioner, he did not discuss custody with Respondent because the Child was in Peru with
her maternal grandparents when the parties initiated the divorce, and at the time, he did not realize custody was coupled
with the divorce. Id. at 145:20-146:20.
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In February 2024, Petitioner sought to increase his parenting time by filing a petition to
modify the custody agreement in Argentine court. Id. at 166:20-167:7.
During the custody proceedings, the parties agreed that the Child would spend a few nights
a week at Petitioner’s house. Id. at 167:9-12, 169:4-6. Petitioner set up and decorated a room for
the Child, and the Child spent her first night at Petitioner’s house in May 2024. 	Id. at 168:25-
169:3 436:14-21.
Petitioner played an active role in the Child’s life, as he arranged her schooling, medical,
and dental care. Id. at 171:7-183:12; Pet’r Ex. 37 (school registration fee receipts); Pet’r Ex. 135
(panoramic x-ray of the Child’s mouth captured at an appointment Petitioner took her to); Pet’r
Ex. 136 (prescription from the Child’s otolaryngologist given to Petitioner).
While Petitioner’s exercise of custody rights is uncontested, Tr. at 198:8-12, the parties
have differing accounts of the Child’s time with Petitioner and the quality of their relationship.
Petitioner’s new partner, who lived with Petitioner at the time, described Petitioner as a loving and
involved parent. See id. at 436:6-437:6, 442:16-443:9 (discussing Petitioner preparing his home
for the Child and the activities they would do together); Pet’r Ex. 33 at 1, 7, 22, 23, 24 (photos of
the Child and Petitioner taken by Petitioner’s partner). Respondent’s mother, on the other hand,
alleges that the Child’s behavior changed after she began spending time at Petitioner’s home. See
Tr. at 688:13-21 (testifying that the Child would cry, urinate involuntarily, wear long shirts and
shorts while showering,12 and experience nightmares).
12 Respondent’s mother indicated that the Child used to wear “underwear panty” when she bathed her, but after
spending time at Petitioner’s, the Child no longer wanted to shower with her and “wanted to be covered up.” Tr.
689:17-22. The Child’s alleged abnormal behavior while showering was controverted by Petitioner’s partner, who
testified that the Child showered privately and without issue at Petitioner’s home. Id. at 824:3-11.
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With the consent of Respondent, Petitioner arranged for the Child to receive psychological
support in the form of weekly therapy with a licensed psychologist beginning in March 2024. Id.
at 849:18-850:5, 873:11-13. 	As explained by the Child’s psychologist, Jesica Cecilia Voci
(“Voci”), Petitioner sought treatment for the Child to provide an objective space for the Child to
communicate any issues or anxieties she had about the changes in her routine and her transition to
life in Argentina. 	Id. at 849:20-850:3. As a part of the Child’s treatment, Voci interviewed the
core adults of the Child’s new family dynamic: Petitioner, Respondent,13 Petitioner’s partner, and
the Child’s maternal grandparents. Id. at 850:12-21.
Voci described the Child’s demeanor at their first session as relaxed, happy, self-confident,
non-resistant and comfortable. 	Id. at 850:25-851:7. 	Regarding her demeanor at subsequent
sessions, Voci stated: “[I]t was always the same, she was very communicative, she knew how to
use the space, she was comfortable[.]” Id. at 851:8-16. Voci also said that she saw only positive
interactions between the Child and Petitioner. Id. at 862:3-10 (describing how Petitioner and the
Child would kiss and hug when he dropped her off for therapy and how the Child showed no
resistance to going with him when he picked her up). Notably, while the Child’s initial reaction to
sleeping at Petitioner’s house was positive, id. at 855:3-7, Voci later observed that the Child.
“developed a certain level of resistance to staying with him because the subject kept coming up of
her moving to the United States to live with mom and that she was not going to see her father
again,” id. at 862:14-17. Voci also indicated that the Child developed a resistance to staying with
Petitioner due to her grandparents “becoming sad and . . . saying that if she wanted to stay and live
with her father, then they would have no reason to stay in Argentina, and that she -- they may have
13 As a part of the intake process, Voci elicited information about Petitioner from Respondent: “I asked whether she
thought [Petitioner] was a dangerous person and she said not at all. He may be very basic, but she did not say that he
was dangerous.” Tr. at 878:13-16.
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to go back to Peru if she decided to stay and live with [Petitioner].”14 Id. at 855:9-16. As put by
Voci, the Child
never expressed any negative comments nor negative feelings about spending time
with her father or her father’s partner. It was after having spent time with her father
when she went back to her maternal grandparents that she would say that they --
that she started to feel sad because she felt that they would say, if you want it stay
with your father, then, you know, we’re going to go back to Peru because we’ll have
no reason to stay here but maybe -- and so you need to learn English to be able to
go to New York or to Peru. 	I don't know whether [the Child] was mixing some
countries or whatnot. But I think what made her anxious and upset is to, you know,
not be able to spend time with both of her families and to be placed in that
situation.15
Id. at 860:24-861:11.
The Child’s sessions continued until September 2024, at which point Respondent withdrew
her consent for the Childs’s treatment. Id. at 871:2-8. Respondent withdrew her consent the day
after Voci submitted a report16 on the Child to the Argentine family court overseeing the custody
proceedings. Id. Voci noted that if Respondent had not withdrawn her consent, she intended to
lessen the frequency of the sessions out of concern they were becoming monotonous and
frustrating for the Child. 	Id. at 880:14-24. 	Voci stated that this was not because of a lack of
14 This statement is not considered by the Court for its truth but for the effect on the listener, the Child.
15 The statements by the Child’s maternal grandparents are not considered by the Court for their truth but for their
effect on the listener.
16 The Court reserved decision on Respondent’s objection to the admissibility of three reports produced by Voci for
the Argentine family court: Petitioner’s Exhibit 6, Report by Child’s Psychologist Provided to Family Court in
Argentina, dated August 12, 2024; Petitioner’s Exhibit 7, Report by Child’s Psychologist Provided to Family Court in
Argentina, dated September 23, 2024; and Petitioner’s Exhibit 8, Report by Child’s Psychologist Provided to Family
Court in Argentina, dated September 26, 2024. 	Respondent’s hearsay objection, Tr. at 869:6-10, is sustained.
Petitioner contended that the reports are “medical records and official records,” id. at 869:11-2, but they were created
for the purpose of litigation and are inadmissible as business records or public records under Federal Rules of Evidence
803(6) and 803(8). See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (noting that business records under
803(6) and public records under 803(8) exclude “documents prepared for the ultimate purpose of litigation”). They
are likewise inadmissible under Federal Rule of Evidence 803(4), as Voci’s statements were not made for the purpose
of medical diagnosis or treatment. Rather, the statements in the reports were made to update the court on the Child’s
development and her issues navigating the family dynamic. The reports therefore do not meet the requirements of the
medical records exception. See Johnson v. Pacheco, 20-3758-cv, 2022 WL 102072, at *1 (2d Cir. Jan. 11, 2022)
(“Rule 803(4) provides a hearsay exception if a statement ‘is made for—and is reasonably pertinent to—medical
diagnosis or treatment.’” (quoting Fed. R. Evid. 803(4)(A))).
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progress with her but rather external obstacles related to the Child’s maternal family. Id. at 880:25-
881:3, 881:16-21.
The conflict between the Child’s maternal and paternal families, and her place at the center
of it, is further reflected by an incident that took place on September 21, 2024. According to the
Child’s maternal grandmother, Petitioner was due to bring the Child to her maternal grandparents’
home at 10:00 p.m. but showed up an hour late. Id. at 690:4-12; Resp’t Ex. CCCC (police report,
dated Sep. 22, 2024). 	When Petitioner arrived, the Child’s grandmother noticed through the
peephole of her front door that Petitioner was angry and the Child was crying. Tr. at 690:13-18.
According to Respondent’s mother, when she opened the door slightly, Petitioner kicked it open
and threatened her. Id.; Resp’t Ex. CCCC (indicating that Petitioner said “I’m going to ruin your
life and your daughter’s”). According to Respondent’s mother, the Child told her that Petitioner
did not let her speak to her mother, Respondent, and tried to force her to stay at his house. Resp’t
Ex. CCCC.
The parties executed a custody agreement in October 2024, Pet’r Ex. 15 (custody
agreement), and it was judicially certified by the Argentine court in December 2024, Pet’r Ex. 16
(judicial certification). Pursuant to the agreement, the Child started staying at Petitioner’s house
four times a week, from after school on Wednesday through Sunday. Pet’r Ex. 15 at 5. The custody
agreement establishes Petitioner’s home in Argentina as the Child’s main residence. 	Id. at 4
(“[T]he main residence of the minor being with her father, currently at Dean Funes 375,
Boulogne.”). Additionally, the custody agreement allows for the Child to visit Respondent in the
United States ten days during school winter break vacation and 45 days during summer break
periods, with Respondent responsible for related travel expenses and Unaccompanied Minor
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Service with the airline and/or other suitable accompaniment for the Child Id. at 5. The custody
agreement remains in effect to this date.
C. January 2025: Travel to the United States and Subsequent Legal Proceedings
Shortly after the custody agreement was reached, but before it was judicially certified,
Respondent purchased round-trip airline tickets for the Child to travel to New York. Tr. at 187:14-
188:2. The tickets reflected that the Child was to depart from Buenos Aires on January 2, 2025,
and return on February 18, 2025. 	Pet’r Ex. 5 (travel itinerary); Tr. at 187:17-19. 	Petitioner
subsequently signed a travel authorization for the Child to visit New York for that period. Pet’r
Ex. 4 (travel authorization); Tr. 185:16-22. In the period leading up to her departure, Petitioner’s
partner described the Child as “clingy” and affectionate with Petitioner. Tr. at 450:19-23; Pet’r
Ex. 33 at 24 (picture of Petitioner and the Child taken one week before the Child left for the United
States).
On January 2, 2025, the Child, then 6 years old, departed from Argentina to the United
States to visit Respondent. See Pet’r Ex. 5. According to Respondent, several days after her arrival
in New York, the Child allegedly disclosed to her that Petitioner abused her.17 Tr. at 605:5-606:7.
On February 11, 2025, Respondent filed a Family Offense Petition in Nassau County
Family Court seeking an Order of Protection for herself and the Child based on Petitioner’s alleged
17 According to Respondent, the Child had previously told her that Petitioner had slapped her in November and
December 2024, which Petitioner denied on both occasions. See Resp’t Ex. BB (messages between Petitioner and
Respondent, dated Dec. 8, 2024); Resp’t Ex. BBBB (messages between Petitioner and Respondent, dated Nov. 27,
2024). As for the Child’s alleged disclosures in January 2025, Respondent asserts that the Child expressed a desire to
not return to Argentina because “her father treated her so badly, that he hit her, he spat on her, he slapped her, he locked
her in her room, and so did [her] father’s partner.” Tr. at 605:5-606:7. Although the Court sustained a hearsay
objection to these statements, id. at 606:8-10, the Court considers these statements for the non-hearsay purpose of
effect on the listener. See Fed. R. Evid.801(c). While Petitioner denied these allegations, he admitted to two instances
of physical discipline: “slightly slap[ping]” the Child after she disrespected her grandmother and giving her “a very
light slap or tap on her buttocks” after she dropped Petitioner’s 2-year-old niece. See id. at 281:3-11, 299:5-19.
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physical and psychological abuse. Ans. ¶ 90. The Child was appointed an Attorney for the Child
(“AFC”) to represent her interests in those proceedings. Id. ¶ 91.
On February 13, 2025, Petitioner first learned of Respondent’s intention to keep the Child
in the United States. 	Id. at 192:20-22. 	Respondent initially advised Petitioner that she was
enrolling the Child in an English and theatre institute to occupy her while she worked, but
Respondent later disclosed that she had enrolled the Child in a full-time school.18 Pet’r Ex. 131
(messages between Petitioner and Respondent, dated Jan. 18, 2025); Pet’r Ex. 132 (messages
between Petitioner and Respondent, dated Feb. 28, 2025); Tr. at 193:1-194:8.
On February 17, 2025, Petitioner informed the Child’s school in Argentina that she would
not be coming back. Pet’r Ex. 36 (correspondence with the Child’s school); Tr. 196:6-8. Petitioner,
however, stayed in communication with the school throughout 2025 and continued paying her
registration fee so that the Child would not lose her spot. Pet’r Ex. 44 (correspondence with the
Child’s school); Tr. at 194:13-21. Petitioner also filed a police report and contacted his attorney
and the Argentine foreign ministry to initiate Hague Convention proceedings. Pet’r Ex. 21 (police
report, dated Feb. 20, 2025); Pet’r Ex. 19 (letter from the U.S. Department of State to Respondent
for the voluntary return of the child, dated Aug. 6, 2025); Tr. at 196:24-197:25. At no time did
Petitioner consent to the Child staying in the United States permanently. Tr. at 198:19-199:3.
On February 21, 2025, Respondent filed an affirmative asylum application on the Child’s
behalf, which is currently pending. Resp’t Ex. T (asylum application); Tr. at 603:20-22.
18 While Respondent could not recall the date she first contacted the school, Tr. at 664:24-665:1, she testified that she
went to the school on January 20, 2025, and spoke to people in the school’s office, id. at 666:14-667:1. Respondent’s
interrogatory answers confirm that date as well. See Pet’r Ex. 98 at 5. The Court takes judicial notice of the fact that
January 20, 2025, was Martin Luther King Jr. Day, a federal and state holiday.
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In August 2025, the Child disclosed that Petitioner touched her inappropriately when he
bathed her during the limited months he shared physical custody of her. Ans. ¶ 91.19
In December 2025, Respondent had the Child evaluated by a forensic psychology expert
for the purpose of this litigation. Tr. at 712:25-713:8. 	In forming his expert opinion, Dr. Peter
Favaro (“Dr. Favaro”) spoke to Respondent, the Child’s maternal grandparents, and the Child’s
American therapist. 	Id. at 715:22-25. 	Respondent described Petitioner to Dr. Favaro as
“manipulative” and “narcissistic,” saying he would “hit her then apologize” and abuse her
“physically, emotionally, and sexually on numerous occasions.”20 Id. at 734:10-19. During her
evaluation, the Child disclosed to Dr. Favaro that Petitioner would strike her face and touch her
private parts in the shower and while she was in bed, which made her feel “sad and mad.” Id. at
748:8-20. 	Dr. Favaro observed that the Child “became very dysregulated” and that her speech
lapsed into Spanish when she spoke about Petitioner. Id. at 758:18-759:18.
Dr. Favaro ultimately concluded that, assuming all allegations of abuse were true, the Child
would face the risk of re-traumatization if she returned to Argentina. Id. at 771:17-25. In reaching
this conclusion, Dr. Favaro did not review records related to the Child’s therapy in Argentina, and
he was not aware that the Child underwent therapy with a psychologist in Argentina. Id. at 768:19-
25. 	With regard to the Child’s maturity, Dr. Favaro opined that “maturity [is] a hypothetical
construct. There’s no specific definition of maturity. [The Child] was mature enough to know that
if she returned to Argentina, she would be frightened, okay. And [he] took that as a measure of her
maturity. [The Child] understood what she was saying, and she understood the consequences of
19 The Court acknowledges that testimony regarding the Child’s August 2025 disclosure to the AFC was improperly
elicited at the Hearing as hearsay. Tr. at 607:7-609:18. Herein, the Court cites Respondent’s Verified Answer for the
purpose of establishing a timeline and providing context for the Child’s subsequent forensic evaluation, not for the
truth of the matter asserted.
20 At the Hearing, Respondent did not testify that Petitioner had ever abused her sexually.
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what might happen if she returned.” Id. at 769:14-24. Nonetheless, Dr. Favaro stated that he has
never found a 7-year-old to be “mature.” Id. at 796:25-797:1.
CONCLUSIONS OF LAW
A. The Hague Convention
The Hague Convention was adopted “to protect children internationally from the harmful
effects of their wrongful removal or retention.” Hague Convention at Preamble. The Convention
does so by establishing procedures “‘to secure the prompt return of children wrongfully removed
to or retained in any Contracting State,’ and ‘to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in the other Contracting States.’” Abbott
v. Abbott, 560 U.S. 1, 8 (2010) (quoting Hague Convention art. 1). 	The United States has
implemented the Hague Convention through ICARA. Id. at 9; see also 22 U.S.C. §§ 9001 et seq.
United States district courts have original jurisdiction over actions arising under the Hague
Convention. See 22 U.S.C. § 9003(a).
The remedy under the Hague Convention is the return of the child to their country of
habitual residence. Abbott, 560 U.S. at 9. When a child younger than sixteen “has been wrongfully
removed or retained, the country to which the child has been brought must ‘order the return of the
child forthwith,’ unless certain exceptions apply.” 	Id. (citing Hague Convention arts. 4, 12). A
removal is wrongful where
a) it is in breach of rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and b) at the time
of removal or retention those rights were actually exercised, either jointly or alone,
or would have been so exercised but for the removal or retention.
Hague Convention art. 3.
To establish a prima facie case of wrongful removal or retention under the Hague
Convention, a petitioner must establish by a preponderance of the evidence that
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(1) the child was habitually resident in one State and has been removed to or
retained in a different State; (2) the removal or retention was in breach of the
petitioner’s custody rights under the law of the State of habitual residence; and (3)
the petitioner was exercising those rights at the time of removal or retention.
Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005); see also 22 U.S.C. § 9003(e)(1).
If a petitioner establishes a prima facie case of wrongful removal or retention, the child
must be returned to the place of habitual residence unless one of the affirmative defenses set forth
in the Hague Convention applies. 	See Mota v. Castillo, 692 F.3d 108, 113 (2d Cir. 2012). 	A
respondent opposing the return of the child has the burden of establishing, by clear and convincing
evidence, that one of the exceptions set forth in Article 13(b) or Article 20 of the Hague Convention
applies or, by a preponderance of the evidence, that any other exception set forth in Article 12 or
Article 13 of the Hague Convention applies. 22 U.S.C. § 9003(e)(2); see also Blondin v. DuBois
(Blondin II), 189 F.3d 240, 245-46 (2d Cir. 1999). Importantly, a court’s consideration of a Hague
Convention petition may not consider the merits of any underlying custody disputes, see Hague
Convention art. 16; “[r]ather, the Convention’s focus is simply upon whether a child should be
returned to her country of habitual residence for custody proceedings,” Mota, 692 F.3d at 112
(emphasis added).
B. Petitioner’s Prima Facie Case
The Court first considers whether Petitioner has established a prima facie case of wrongful
retention by a preponderance of the evidence.21
21 Because the Petition focuses on wrongful retention, rather than wrongful removal, see Pet. ¶¶ 30-32, the Court
assesses the merits based on wrongful retention. “‘[W]rongful retention’ occurs when one parent, having taken the
child to a different Contracting State with permission of the other parent, fails to return the child to the first Contracting
State when required.” Marks ex rel. S.M. v. Hochhauser, 876 F.3d 416, 421 (2d Cir. 2017).
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1. 	Habitual Residence
Petitioner must first demonstrate that Argentina was the Child’s habitual residence. 	See
Gitter, 396 F.3d at 130-31. 	Habitual residence is undefined by the Hague Convention, but the
Second Circuit recommends a two-step analysis:
First, the court should inquire into the shared intent of those entitled to fix the
child’s residence (usually the parents) at the latest time that their intent was shared.
In making this determination the court should look, as always in determining intent,
at actions as well as declarations. Normally the shared intent of the parents should
control the habitual residence of the child. Second, the court should inquire whether
the evidence unequivocally points to the conclusion that the child has acclimatized
to the new location and thus has acquired a new habitual residence, notwithstanding
any conflict with the parents’ latest shared intent.
Id. at 134. Put a different way, courts consider the totality of the circumstances when determining
habitual residence and may consider factors such as “where a child has lived, the length of time
there, acclimatization, and the ‘purposes and intentions of the parents.’” See Grano v. Martin, 821
F. App’x 26, 27 (2d Cir. 2020) (citing Monasky v. Taglieri, 589 U.S. 68, 79 (2020)).
a. 	Shared Intent
In line with the Second Circuit’s recommendation to look to “declarations” of the parties’
shared intent, Gitter¸ 396 F.3d at 134, district courts in this Circuit have acknowledged that
consensual agreements between the parties play a significant role in determining habitual residence
of a child. See, e.g., Pignoloni v. Gallagher, 12-CV-3305, 2012 WL 5904440, at *48 (E.D.N.Y.
Nov. 25, 2012) (relying on the parties’ consensual separation agreement as a manifestation of
shared intent to change the children’s habitual residence to the United States); Guzzo v. Cristofano,
11 Civ. 7394, 2011 WL 6934108, at *5 (S.D.N.Y. Dec. 30, 2011) (“[T]he Court finds that the
Separation Agreement, pursuant to which the parties agreed that Respondent would have custody
of the child, live with the child in New York, and send the child to school in New York, constitutes
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the last shared intent of the parties.”). The relevant period of habitual residence is the span of time
immediately before the date of the alleged wrongful retention. Monasky, 589 U.S. at 77.
Here, in May 2023, the Child moved from Peru back to Argentina, and the parties executed
a custody agreement on October 16, 2024, which established that the Child’s “main residence” is
Petitioner’s home in Argentina. Pet’r Ex. 15. Per the judicially certified agreement, Respondent
has limited custody rights during school vacation periods in summer and winter. Id. There is no
evidence 	suggesting 	that 	the 	agreement 	was 	entered 	into 	unknowingly 	or 	involuntarily.
Accordingly, the last shared intent of the parties was for the Child’s habitual residence to be
Argentina.
b. 	Acclimatization
In rare circumstances, a child may acclimatize to new surroundings such that their habitual
residence has shifted. Requiring return to the original country would therefore be tantamount to
“taking the child ‘out of the family and social environment in which its life has developed.’”
Gitter, 396 F.3d at 134 (quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir. 2001)); see also
Hofmann v. Sender, 716 F.3d 282, 293-94 (2d Cir. 2013). 	The Second Circuit has, however,
cautioned that “courts should be ‘slow to infer’ that the child’s acclimatization trumps the parents’
shared intent.” Gitter, 396 F.3d at 134 (quoting Mozes, 239 F.3d at 1079). “A finding that this
standard is satisfied is therefore only appropriate ‘in “relatively rare circumstances” in which a
child’s degree of acclimatization is “so complete that serious harm . . . can be expected to result
from compelling his or her return to the family’s intended residence.”’” Hofmann, 716 F.3d at 294
(quoting Mota, 692 F.3d at 116). 	“When applying this framework, the age of the child and the
time spent in the respective countries can affect how much weight a court should place on parental
intent.” Guzzo, 719 F.3d at 108.
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Respondent disputes that the Child’s habitual residence is Argentina. Her main contention
is not that the Child’s habitual residence has shifted to New York.22 Rather, Respondent contrasts
the quality of stability of the Child’s life in Peru with her life in Argentina to argue that the Child’s
habitual residence was not Argentina at the time of the retention. See Resp’t Summ. ¶¶ 6-11.
Respondent’s arguments on this point are unavailing. The habitual residence analysis is
based on the totality of the circumstances, Monasky, 589 U.S. at 68, and this is not a rare situation
where the Child’s acclimatization trumps shared intent, see Gitter, 396 F.3d at 134. 	The Child
moved to Peru at 11 months old and returned to Argentina at 4 years old. She was 6 years old at
the time of the alleged wrongful retention. Although the Child spent much of her young life in
Peru, acclimatization is not as relevant where the child is so young. See Gitter, 396 F.3d at 134;
Monasky, 589 U.S. at 78 (“For older children capable of acclimating to their surroundings, courts
have long recognized, facts indicating acclimatization will be highly relevant.”).
The quality of stability of the Child’s life in Argentina also does not trump the parties’
shared intent. 	To the extent this argument relies on Petitioner’s alleged abuse of the Child, the
Court finds that the veracity of these allegations is questionable. See infra Section C.1.b. While
the record does establish that the Child was at the center of a heated and contentious family
dynamic, 	see 	Resp’t 	Ex. 	CCCC; Tr. 	at 	860:24-861:11 	(discussing 	the 	Child’s 	struggles
22 Respondent nonetheless argues that even if the Child’s habitual residence shifted to Argentina, “this Court could
reasonably find that by the time the Petition was filed the Child’s habitual residence had shifted to the United States
where she was attending school and had a home.” Resp’ Summ. ¶ 12. This argument is unavailing. The relevant time
for acclimatization is the period before the alleged wrongful retention. See Morales v. Restrepo, 24-cv-07951 (NCM)
(TAM), 2025 WL 939294, at *8 (E.D.N.Y. Mar. 28, 2025) (considering only the child’s four-month tenure in the
United States prior to the date of alleged wrongful retention); Ordonez v. Tacuri, 09-CV-1571 (FB), 2009 WL 2928903,
at *6 n.8 (E.D.N.Y. Sept. 10, 2009) (“The Court is mindful that it would be inappropriate to consider the period of
time after the alleged wrongful removal in the acclimatization analysis, as this could ‘reward the [allegedly] abducting
parent for the time during which the child was [allegedly] wrongfully retained or removed.”); Tatari v. Durust, 24-
CV-6930 (CBA) (SJB), 2024 WL 4956307, at *5 (E.D.N.Y. Dec. 3, 2024) (holding that, despite evidence indicating
the child may have become acclimatized to the United States in the three months since a move from Turkey, the child
lived in Turkey until he was brought to the United States, so Turkey was his habitual residence). The Child was only
in New York for less than two months of the period before the alleged wrongful retention. See Pet’r Ex. 4.
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transitioning to shared custody), the Child was born in Argentina and has an Argentine ID, see
Pet’r Ex. 3; Pet’r Ex. 43 (Argentine ID). The Child was also enrolled in school in Argentina, both
sets of grandparents live in Argentina, and many other family members live there as well. Tr. at
199:21-24; Pet’r Ex. 33 at 3-6, 10, 36, 41; Pet’r Ex. 37. 	The Child also had a dentist and an
otolaryngologist in Argentina and was enrolled in therapy to help navigate the new family
dynamic. Pet’r Ex. 135; Ex. 136; Tr. at 850:4-7 (discussing the Child’s weekly therapy from March
to September 2024).
Accordingly, Petitioner has established by a preponderance of the evidence that the Child’s
habitual residence was Argentina.
2. 	Breach of Custody Rights Exercised at Time of Retention
The Court next considers whether Petitioner has established the second and third elements
of a prima facie case under the Hague Convention. Petitioner must demonstrate that the Child’s
retention in the United States in February 2025 was in breach of Petitioner’s custody rights under
Argentine law, and that Petitioner was exercising those rights at the time of the retention. 	See
Hague Convention, art. 3; Gitter, 396 F.3d at 130-31. Under Article of 3 of the Hague Convention,
custody rights may arise by “reason of an agreement having legal effect under the law of that
State.”
As discussed above, the parties executed a custody agreement in October 2024 that was
judicially certified by an Argentine court. 	Pet’r Ex. 15; Pet’r Ex. 16. 	The agreement provided
Respondent with limited vacation rights that needed to be approved by Petitioner. See Pet’r Ex.
15. In accordance with the agreement, Petitioner signed a judicially certified travel authorization
for the Child to visit Respondent in the United States from January 2, 2025, to February 18, 2025.
Pet’r Ex. 4. The Child’s round-trip airline tickets also reflect authorization for those dates. Pet’r
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Ex. 5. 	The record establishes that Petitioner did not consent to the Child’s retention beyond
February 18, 2025. Pet’r Ex. 21; Tr. at 198:19-199:3.
Furthermore, Respondent does not contest that Petitioner was exercising custody rights at
the time of the retention. Pet’r Ex. 15 (“[T]he main residence of the minor being with her father,
currently at Dean Funes 375, Boulogne.”); Tr. at 171:2-4 (Petitioner testifying that “[the Child’s]
main residence when the agreement was finalized was to be [his] home where [he is] renting
currently”); Tr. at 171:1-183:12 (Petitioner testifying regarding his active role in the Child’s life);
Tr. at 198:8-12 (counsel stating that Respondent is not contesting the exercise of custody of rights).
Based on the credible facts in the record, the Court finds that Petitioner has established a
prima facie case of wrongful retention under the Hague Convention and ICARA.
C. Affirmative Defenses
Having found that Petitioner has established a prima facie case of wrongful retention, the
Court now considers whether Respondent has met her burden of proof as to an affirmative defense.
See. 22 U.S.C. §§ 9001(a)(4), 9003(e)(2); Souratgar v. Lee, 720 F.3d 96, 101-02 (2d Cir. 2013).
Respondent asserts three affirmative defenses: the “grave risk defense,” “mature age defense,” and
the “violation of human rights and fundamental freedoms defense.”
1. 	Grave Risk Defense
The “grave risk” affirmative defense precludes return if there is clear and convincing
evidence that return would place a child “at a ‘grave risk’ of harm or otherwise in ‘an intolerable
situation.’” 	See Monasky, 589 U.S. at 72 (quoting Hague Convention art. 13(b)); 22 U.S.C. §
9003(e)(2)(A). 	Hague Convention Article 13(b) contemplates grave risk in two situations: “(1)
where returning the child means sending him to ‘a zone of war, famine, or disease’; or (2) ‘in cases
of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country
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of habitual residence, for whatever reason, may be incapable or unwilling to give the child
adequate protection.’” Blondin v. Dubois (Blondin IV), 238 F.3d 153, 162 (2d Cir. 2001) (quoting
Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996)); see also Friedrich, 78 F.3d at 1068
(“The exception for grave harm to the child is not license for a court in the abducted-to country to
speculate on where the child would be happiest. That decision is a custody matter, and reserved
to the court in the country of habitual residence.”). “Clear and convincing evidence” is evidence
that “produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established, evidence so clear, direct and weighty and convincing as to
enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise
facts in issue.’” See Blair v. Inside Ed. Prods., 7 F. Supp. 3d 348, 358 (S.D.N.Y. 2014) (quoting
In re Martin, 538 N.W.2d 399, 410 (Mich. 1995))).
a. 	Spousal Abuse Allegations
Spousal abuse “is only relevant under Article 13(b) if it seriously endangers the child. The
Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave
risk, but whether so doing would subject the child to a grave risk of physical or psychological
harm.” 	Souratgar, 720 F.3d at 103-04. 	This exception has been found “where the petitioner
showed a ‘sustained pattern of physical abuse and/or a propensity for violent abuse’ that presented
an intolerably grave risk to the child.” Id. at 104 (quoting Laguna v. Avila, 07-CV-5136 (ENV),
2008 WL 1986253, at *8 (E.D.N.Y. May 7, 2008)). 	“Sporadic or isolated incidents of physical
discipline directed at the child, or some limited incidents aimed at persons other than the child,
even if witnessed by the child have not been found to constitute a grave risk.” Id. (citing In re
Filipczak, 838 F. Supp. 2d 174, 180 (S.D.N.Y. 2011)). Courts have found the grave risk exception
is not met when the petitioner was physically abusive towards the respondent, but there was no
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clear and convincing evidence that the petitioner posed a grave risk to the child by virtue of efforts
to control the respondent parent. 	See Grano, 821 Fed. App’x at 28-29. 	“A grave risk of harm
occurs where the ‘petitioning parent has actually abused, threatened to abuse, or inspired fear in
the children in question.’” Id. at 27 (quoting Ermini v. Vittori,758 F.3d 153, 164 (2d Cir. 2014)).
To “hold evidence of spousal conflict alone, without a clear and convincing showing of grave risk
of harm to the child, to be sufficient to decline repatriation, would unduly broaden the Article 13(b)
defense and undermine the central premise of the Convention: that wrongfully removed children
be repatriated so that questions over their custody can be decided by courts in the country where
they habitually reside.” Souratgar, 720 F.3d at 105-06.
Respondent 	places 	great 	emphasis 	on 	Petitioner’s 	pattern 	of 	violence toward 	her
throughout their relationship, see Resp’t Summ. ¶¶ 17-21, which Petitioner largely denies, see
Pet’r Summ. at 20-22. 	However, while spousal abuse may have occurred during the parties’
relationship, the evidence presented by Respondent is incomplete and inconsistent, leading the
Court to question Respondent’s credibility as well as the frequency and extent of the alleged abuse.
First, Respondent has failed to present any contemporaneous communications or medical
records related to the alleged incidents, which would be particularly probative of Respondent’s
hospitalization when Petitioner allegedly kicked her in the stomach while pregnant, see supra note
5, and of her trip to the hospital in an ambulance when she allegedly jumped out of Petitioner’s
moving car, see supra note 6.
Second, Respondent relies on pictures of her injuries to prove that the violence occurred
when it did. See Resp’t Ex. VVV; Resp’t Ex. AAAA; Resp’t Ex. F; Resp’t Ex. G; Resp’t Ex. H;
Resp’t Ex. E; Resp’t Ex. M; Resp’t Ex. XXX; Resp’t Ex. ZZZ; Resp’t Ex. YYY; Resp’t Ex. L.
But on cross-examination, it was apparent that these pictures lack dates, context, metadata or any
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information to prove they were the results of the alleged incidents. 	Tr. at 632:1-13. They also
present inconsistencies. 	See, e.g., supra note 6 (discussing Respondent’s inconsistent assertion
that the pictures in Respondent’s Exhibits AAA and F were taken the same day). 	Respondent
identified certain pictures as relating to a specific incident at the Hearing, but that identification
conflicted with her prior filings in Nassau County Family Court. 	Compare Tr. at 632:14-22
(Respondent indicated that the pictures admitted into evidence as Respondent’s Exhibit XXX were
taken after the July 2019 incident), with Pet’r Ex. 17 at 5, 76-78 (in a verified family court filing,
Respondent indicates that the same pictures were taken following the September 2019 incident).
There are also inconsistencies between her verified statements in Nassau County Family Court and
hearing testimony provided by both Respondent and her mother on certain events. Compare Pet’r
Ex. 17 at 5 (in a verified family court filing, Respondent indicates that the September 2019
strangulation and hair burning incident took place in the Child’s bedroom while she was in her
crib), with Tr. at 681:6-682:15 (Respondent’s mother testifying that the September 2019 incident
took place in the parties’ bedroom, and that she had picked up the awakened Child from another
room and was holding her when the bedroom door opened), and Tr. at 556:24-557:5 (Respondent
testifying that the September 2019 incident took place in the parties’ bedroom).
Further, Respondent’s testimony regarding Petitioner’s violence is contradicted by her own
pre-litigation statements. 	See supra note 13 (Respondent’s statement to Voci that she did not
believe Petitioner was dangerous). 	Prior contradictory statements by Respondent were also
memorialized in a New York police report filed on April 30, 2025. Resp’t Ex. B (police report,
dated Apr. 30, 2025). Under the penalty of perjury, Respondent stated “NO” when asked whether
Petitioner ever tried to strangle or choke her or whether Petitioner ever beat Respondent while
pregnant. Id. Respondent also checked “NO” when asked whether Petitioner is capable of killing
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Respondent and the Child. 	Id. 	Respondent again checked “NO” asked whether the suspect is
violently and constantly jealous of her. Id. Most notably, Respondent checked “NO” when asked
whether there is reasonable cause to suspect the Child may be the victim of abuse, neglect,
maltreatment, or endangerment. Id.
Beyond the veracity of Respondent’s accounts of spousal abuse, the alleged abuse still must
subject the child to a grave risk of physical or psychological harm in order to except return.
Souratgar, 720 F.3d at 103-04. While a child’s exposure to spousal abuse may create the requisite
grave risk, id. at 104, that is not the case here. As discussed below, of the incidents alleged by
Respondent, few allegedly involved or were in the presence of the Child.
The first alleged incident was Petitioner kicking Respondent in the stomach while she was
pregnant with the Child. 	See supra note 5. 	Not only is there no medical documentation of the
incident, but Respondent has also recounted the story inconsistently. See id. The Court therefore
does not find Respondent’s testimony regarding the incident to be credible.
As to the alleged incidents following the Child’s birth. 	Respondent testified that when
Petitioner was trying to place the Child in a crib, he hit her head against the side of it. See supra
note 6. However, by Respondent’s own admission at the Hearing, that incident was incidental and
accidental, not intentional. See Tr. at 525:5-15 (“When . . . he tried to put her in the crib, her head
got hit with the side of the crib.”).
Respondent also testified regarding an incident where she jumped out of Petitioner’s car
when the 10-month-old Child in the backseat, and an incident where Petitioner burnt the tips of
her hair and her mother, with the 11-month-old Child in her arms, was outside the bedroom door
but witnessed the aftermath. See supra notes 6, 7. The truth of these incidents aside, the Child
does not remember them, and she affirmed that herself during her therapy with Voci: “In fact,
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whenever she would bring up her mom, she would say, I am going to meet my mom because I do
not know my mom. 	She would ask me, do you now my mom, because I have no memories of
her.” 	Tr. at 863:21-24. 	Under these circumstances, Respondent cannot establish by clear and
convincing evidence that past alleged spousal abuse would expose the Child to a grave risk of
psychological harm upon her return to Argentina, as there are no memories upon which the Child
could face re-traumatization. See Blondin IV, 238 F.3d at 160–61 (affirming denial of a petition to
repatriate after an expert psychologist opined that returning the boy and girl to France, where they
had been abused by their father, would likely trigger recurrence of PTSD, and that no arrangement
could mitigate this risk); Souratgar, 720 F.3d at 104 (upholding the district court’s finding that that
the grave risk exception did not apply as “there is nothing in the record beyond speculation that
[the child] would suffer unavoidable psychological harm if returned to Singapore”).
Accordingly, Respondent has not made a clear and convincing showing of grave risk based
on the alleged spousal abuse.
b. 	Child Abuse Allegations
Evidence showing abuse of the Child may, of course, support a finding of grave risk.
Courts have found such risk of harm where the “petitioning parent ha[s] actually abused,
threatened to abuse, or inspired fear [of abuse] in the children in question.” Ermini, 758 F.3d at
164–65. Here, Respondent raises two types of abuse: (1) physical and psychological abuse and
(2) sexual abuse.
Beginning with Respondent’s allegations of physical and psychological abuse, courts have
found a parent emotionally or psychologically abusing a child to be grave risk. See, e.g., Davies
v. Davies, 717 F. App'x 43, 47–48 (2d Cir. 2017). 	Sporadic and isolated instances of physical
discipline and verbal unkindness, however, do not rise to the level of grave risk. See Souratgar,
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720 F.3d at 104; see also Sanchez v. Sanchez, 1:18CV449, 2021 WL 1227133, at *18 (M.D.N.C.
Mar. 31, 2021) (hitting a child with a phone cable which resulted in red to purple marks is
insufficient to satisfy grave risk standard); Foster v. Foster, 654 F. Supp. 2d 348, 361 (W.D. Pa.
2009) (spankings insufficient to constitute grave risk); McManus v. McManus, 354 F. Supp. 2d 62,
69-70 (D. Mass. 2005) (holding that “two incidents” of a mother striking two of her four children
and a generally chaotic home environment was insufficient to establish a grave risk of harm
because it did not show “a sustained pattern of physical abuse”).
Here, Respondent has not presented credible firsthand accounts or other reliable forms of
contemporaneous evidence of abuse of the Child prior to her January 2025 arrival in the United
States for a winter break visit with Respondent, her first visit with her since 2021. 	Rather, the
allegations arise from two alleged incidents in November and December 2024. See supra note 17.
These incidents were referenced by Respondent in text message threads on November 27, 2024,
see Resp’t Ex. BBBB, and December 8, 2024, see Resp’t Ex. BB. Not only did Petitioner deny
the allegations in real time via text, see Resp’t Ex. BB; Resp’t Ex. BBBB, but the messages are
subject to interpretation. 	Moreover, in observing Petitioner testify, the Court finds credible his
accounts of the two instances of discipline that he admitted to, see supra note 17, as “sporadic
[and] isolated incidents of physical discipline,” which do not constitute grave risk. See Souratgar,
720 F.3d at 104.
Regarding the allegations disclosed after the Child came to the United States, see supra
note 17, such allegations are unsupported by any credible or reliable contemporaneous evidence.
While Respondent’s mother testified as to changes in the Child’s behavior after she began
spending more nights at Petitioner’s home, see Tr. at 688:13-21, she did not mention any physical
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injuries suffered by the Child after spending time at Petitioner’s house, nor were any physical
injuries documented.
In terms of the Child’s changed behavior and its relation to the grave risk analysis, the
Court finds the testimony of the Child’s treating psychologist, Voci, particularly reliable. 	Voci
treated the Child long before this litigation arose, had no prior connection to either party, and
interviewed every relevant family member in 2024. Id. at 850:12-21, 872:20-22. Voci’s testimony
indicates that the Child struggled within the new family dynamic, and while she reacted positively
to spending nights with Petitioner, she felt torn between him and her maternal family. See id. at
860:24-861:11. 	Voci also observed only positive interactions between the Child and Petitioner.
Id. at 862:3-10. Considering this credible account, the Child’s changed behavior can be attributed
to the distress of her new family dynamic rather than abuse by Petitioner. The Court acknowledges
that Respondent’s mother testified regarding the Child’s changed behavior from September 2024
through January 2025, the period after Respondent had revoked her consent for the Child’s therapy
with Voci. 	See Respondent’s Summation ¶ 27. 	But the Court does not find it credible that
Petitioner’s alleged abuse began in the period immediately following the Child’s therapy, despite
the fact that Petitioner had already been spending significant time with her. 	See Tr. at 169:2-6
(Petitioner testifying that the Child began staying at his house two nights a week beginning in late
May 2024).
Given the lack of reliable, contemporaneous evidence proffered by Respondent and the
credible testimony offered by Voci, the Court finds Respondent has failed to meet her burden of
establishing grave risk on the grounds of physical or psychological abuse of the Child.
Turning to the sexual abuse allegations, Respondent also does not meet her burden. The
U.S. Supreme Court has recognized that “[s]exual abuse of a child is one example of an intolerable
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situation” that would preclude repatriation. 	Golan v. Saada, 596 U.S. 666, 680 (2022). 	In
analyzing claims of sexual abuse, courts have held that merely a “strong suggestion of sexual
abuse” is insufficient to satisfy the clear and convincing evidence standard. Galaviz v. Reyes, 95
F.4th 246, 261-62 (5th Cir. 2024). The rigor for the clear and convincing evidence standard in the
sexual abuse context requires eyewitnesses, contemporaneous testimony, or contemporaneous
evidence. See id. at 262. Often, whether abuse has occurred will depend on the credibility of the
witnesses. See Nowlan v. Nowlan, 543 F. Supp. 3d 324, 363 (W.D. Va. 2021). Courts have rejected
the application of the grave risk exception where sexual abuse allegations are not sufficiently
substantiated. 	See, e.g., Nowlan, 543 F. Supp. 3d at 365; Galaviz, 95 F.4th at 261-62;
Charalambous v. Charalambous, 2:10-cv-375, 2010 WL 4115495, at *10 (D. Me. Oct. 12, 2010);
Kufner v. Kufner, 480 F. Supp. 2d 491, 509-10 (D.R.I. 2007); Clarke v. Clarke, 08-690, 2008 WL
2217608, at *8–9 (E.D. Pa. May 27, 2008); Edoho v. Edoho, H-10-1881, 2010 WL 3257480, at *6
(S.D. Tex. Aug. 17, 2010); Stirzaker v. Beltran, CV09-667-N-EJL, 2010 WL 1418388 (D. Idaho
Apr. 6, 2010); Steffen F. v. Severina P., 966 F. Supp. 922, 926 (D. Ariz. 1997); Abrego v. Garfias,
1:24-cv-2272-MLB, 2024 WL 6956468, at *8 (N.D. Ga. Dec. 30, 2024).
Respondent does not present clear and convincing evidence of sexual abuse. Not only did
the allegations arise in a suspicious manner, but they are not sufficiently substantiated. The Child
first disclosed the alleged sexual abuse some time in August 2025, after she had been in the United
States for 8 months. 	Id. at 607:7-11; Ans. ¶ 91. 	The timing of the sexual abuse allegations is
suspicious in and of itself, particularly in light of the Department of State’s letter for the voluntary
return of the child dated August 6, 2025, addressed to Respondent in New York. See Pet’r Ex. 19.
Respondent’s mother testified that she observed changed behavior in the Child, such as
urinating on herself and sleep issues, and that the Child began exhibiting abnormal behavior while
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showering. Tr. at 688:13-21. 	Specifically, Respondent’s mother stated that although the Child.
was already showering in “underwear panty,” she began wearing dresses, long-sleeve shirts and
shorts to be completed covered. Id. at 689:17-22. The Court finds this testimony confusing and
of diminished probative value given the statement that the Child was wearing clothing while
bathing in the first place. 	See id. 	Moreover, the Court finds it troubling that such a change in
behavior would be noticed but not expressed, investigated or reported by Respondent’s mother, or
anyone, contemporaneously. 	Furthermore, Respondent’s mother’s testimony is controverted by
the testimony of Petitioner’s partner, who indicated that the Child bathed privately and without
issue while at Petitioner’s home. Id. at 824:3-11.
Respondent relies heavily on the expert opinion of Dr. Favaro in attempting to meet her
burden in regard to the sexual abuse allegations. The Court acknowledges that Dr. Favaro was an
expert retained for the purpose of this litigation and has a limited scope of information. Dr. Favaro
only interviewed Respondent, the Child’s maternal grandparents, and the Child’s American
therapist. Id. at 715:22-25. Notably, Respondent informed Dr. Favaro that Petitioner was sexually
abusive toward her, id. at 734:10-19, but Respondent did not testify to such allegations at the
Hearing nor did she provide any evidence that Petitioner otherwise engaged in sexually deviant
behavior.
While Dr. Favaro ultimately concluded that the Child faced a risk of re-traumatization if
she returned to Argentina, id. at 771:17-19, the Court finds this conclusion speculative and not
based on the credible facts and admitted evidence in this action. Dr. Favaro did not diagnose the
Child with post-traumatic stress disorder (“PTSD”), and he further testified that the Child’s
American therapist had not diagnosed her with PTSD. Id. at 768:10-11. Moreover, in addition to
the information provided by Respondent, Dr. Favaro relied on the Child’s behavioral signs of
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trauma but did not discuss alternative sources of that trauma. Tr. at 765:14-766:23. Courts have
found that sexual abuse allegations are insufficient to satisfy the clear and convincing standard
when alleged behaviors consistent with sexual abuse can be explained by other events. See, e.g.,
Charalambous 	2010 WL 4115495, at *10 (finding that behaviors consistent with sexual abuse
could also be explained by the stress of being brought to the United States and being separated
from the child’s father); Kufner, 480 F. Supp. 2d at 496 (finding symptoms of bed-wetting, nervous
eye twitching, sleeplessness and nighttime crying and screaming not attributable to sexual abuse
and instead attributable to high-conflict custody dispute); Galaviz, 95 F.4th at 258-59 (finding that
behavioral regressions could be attributed to the fact that the child was separated from the father
rather than sexual abuse); Stirzaker, 2010 WL 1418388, at *9 (finding that fear of the petitioner
could be based on a long period of no contact). Particularly relevant on this point is Dr. Favaro’s
admission that he did not review records related to the Child’s psychological treatment in
Argentina, nor did he know the Child received psychological treatment in Argentina. Tr. at 768:19-
25. Given Dr. Favaro’s acknowledgment that it is customary to review treatment notes of a subject
if they are available, id. at 805:8-11, and Voci’s confirmation that she took notes during her sessions
with the Child, id. at 875:3-7, there is a critical gap in Dr. Favaro’s assessment of the Child, and
the Court declines to adopt his opinion when such credible information was not considered.
Respondent has therefore not proven by clear and convincing evidence that Respondent sexually
abused the Child.
Accordingly, Respondent has not proven by clear and convincing evidence that returning
the Child to Argentina would put her at a grave risk of harm.
2. 	Mature Age Defense
Respondent’s mature age defense fares no better. Article 13 of the Hague Convention permits
a court to “refuse to order the return of the child if it finds that the child objects to being returned and
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has attained an age and degree of maturity at which it is appropriate to take account of [his or her]
views.” 	This defense must be established by a preponderance of the evidence. 	See 22 U.S.C.
§ 9003(e)(2)(B).
“Whether a child is mature enough to have its views considered is a factual finding” that a
district court must make in light of the specific circumstances of each case. Simcox v. Simcox, 511
F.3d 594, 603 (6th Cir. 2007). As such, there is no “minimum age at which a child is old enough
and mature enough to [object and] trigger this provision.” Velozny ex rel. R.V. v. Velozny, 550 F.
Supp. 3d 4, 22 (S.D.N.Y. 2021), aff'd, 21-1993-cv, 2021 WL 5567265 (2d Cir. 2021).
Respondent provided no substantive evidence that the 7-year-old Child is sufficiently
mature. 	Instead, Respondent relies on the testimony of Dr. Favaro. 	From the Child’s single
evaluation, Dr. Favaro opined that the Child was mature enough to know that she would be
frightened if she returned to Argentina. 	Tr. at 769:14-24. 	Dr. Favaro did not conduct any
additional psychological testing on the Child, nor did he present any testimony regarding the
Child’s intellect compared to her chronological age. He relied solely on her alleged understanding
of the link between her negative emotions and returning to Argentina. Id. Moreover, he admitted
that he has never found a 7-year-old child to be “mature,” id. at 796:25-797:1, and Respondent has
failed to cite a single case in which—nor is the Court aware of a single case in which—a 7-year-
old was found sufficiently mature to have their views considered. Respondent has therefore failed
to meet her burden in establishing that the Child is mature enough to have her views considered.
Even if the Court were to find the Child sufficiently mature, the Court would hesitate to
give weight to the Child’s objection to return. 	“A child’s objection to being returned may be
accorded little if any weight if [for example] the court believes that the child’s preference is the
product of the abductor parent’s undue influence over the child.” Laguna, 2008 WL 1986253, at
*9 n.9; Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg.
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10494 (Mar. 26, 1986). There are a number of factors leading the Court to believe that the Child
may be unduly influenced by Respondent. 	First, the Child has been wrongfully retained from
Petitioner for one year. See Pet’r Ex. 4; Tr. at 185:16-22. Second, the record has established that
Respondent’s family has previously restricted Petitioner’s access to the Child. Tr. at 163:1-164:14,
166:20-167:7. 	Finally, and perhaps most importantly, the evidence suggests that Respondent
planned to start a life in the United States and retain the Child in the country since at least 2021.
See supra note 8 (allegations of abuse from 2021 stemming from Respondent’s desire to live and
the United States and to get the Child a United States visa); Tr. at 862:14-17 (the Child’s statements
to Voci about moving to the United States and never seeing Petitioner again); Ans. ¶ 86
(“Respondent agreed to a custody arrangement with Petitioner because she believed it was the only
way to obtain his consent for the Child to travel and visit her in New York.”). 	Given these
circumstances, the Court cannot discount Respondent’s motivation to manipulate and influence
the Child to express a desire to stay with her in the United States. 	The Court would decline to
credit the Child’s objection under such circumstances.
3. 	Violation of Fundamental Freedoms and Human Rights Defense
Respondent’s third affirmative defense similarly fails. Article 20 of the Hague Convention
provides that repatriation “may be refused if [it] would not be permitted by the fundamental
principles of the requested State relating to the protection of human rights and fundamental
freedoms.” Souratgar, 720 F.3d at 108 (quoting Hague Convention art. 20). “The article is to be
‘restrictively interpreted and applied’” and “invoked only on ‘the rare occasion that return of a
child would utterly shock the conscience of the court or offend all notions of due process.’” Id.
(quoting Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg.
10494 (Mar. 26, 1986)). The Court is not aware of a single American case where the Article 20
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defense has been successfully raised. See J AMES D. GARBOLINO , F ED. J UD . C TR ., THE 1980 HAGUE
C ONVENTION ON THE C IVIL ASPECTS OF INTERNATIONAL C HILD ABDUCTION: A GUIDE FOR J UDGES
154 n.858 (3d ed. 2023) (noting that as of 2022, the Article 20 defense has never been successfully
raised in the United States).
Respondent argues that returning the Child to Argentina while she has a pending asylum
application in the United States would violate the obligation of non-refoulment. 	Resp’t Summ.
¶ 54. 	The Court does not question that the United States is bound by the obligation of non-
refoulment, see Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267; 8
U.S.C § 1231. 	However, courts have found that a pending asylum application is not a defense
under the Hague Convention and that courts have the authority to order a child’s return despite an
asylum application. See Salame v. Tescari, 29 F.4th 763, 772-73 (6th Cir. 2022); Jose Junior v.
Ferreira de Sousa, 21-cv-02242, 2023 WL 4228163, at *6-7 (N.D. Ohio June 27, 2023) (“Hague
and asylum cases have different evidentiary burdens.”); Sanchez v. R.G.L., 761 F.3d 495, 510 (5th
Cir. 2014) (“The asylum grant does not supersede enforceability of a district court’s order that the
children should be returned to [the petitioner] as that order does not affect the responsibilities of
either the Attorney General or Secretary of Homeland Security under the INA.” (citing Sale v.
Haitian Ctrs. Council, Inc., 509 U.S. 155, 173 (1993))). Accordingly, Respondent has not proven
that the Child’s return to Argentina would “utterly shock the conscience of the court or offend all
notions of due process” such that the Article 20 defense is applicable. Souratgar, 720 F.3d at 108.
D. The Court’s Discretion to Order Return
Even assuming that Respondent established any of the foregoing affirmative defenses, the
Court retains the discretion to return the Child to Argentina “if return would further the aims of the
Convention.” Blondin II, 189 F.3d at 246 n.4 (2d Cir. 1999) (quoting Friedrich, 78 F.3d at 1067).
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In light of Petitioner's prima facie case—that Respondent wrongfully retained the Child in the
United States, thereby breaching Petitioner's custody rights—even if Respondent were to meet her
burden on any of the defenses that she raised, the Court would nonetheless remain inclined to
direct return of the Child so as not to incentivize behavior that directly contravenes Hague
Convention principles.
CONCLUSION
For 	the 	foregoing 	reasons, 	the 	Court 	finds 	that 	Petitioner 	has 	established, 	by 	a
preponderance of the evidence, a prima facie case of wrongful retention under the Hague
Convention and ICARA. The Court also holds that Respondent has failed to satisfy the burdens
of the raised affirmative defenses by either a preponderance of the evidence or clear and convincing
evidence, as applicable. Therefore, the Court grants the petition to return the Child to Argentina.
The Child shall be returned to Argentina immediately for an Argentine court to decide issues
related to the Child’s custody.
The Court orders that by February 20, 2026, at 5:00 p.m., the parties shall file a plan for
the safe return of the Child to Argentina, which shall include her travel itinerary and to whom the
Clerk of Court shall release her passport.
SO ORDERED.
/s/
ORELIA E. MERCHANT
United States District Judge
February 19, 2026
Brooklyn, New York
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