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Date: 04-06-2022
Case Style:
Case Number: 20-5283
Judge: Giblson
Court: United States Court of Appeals for the Sixth Circuit on appeal from the Middle District of Tennessee (Davidson County)
Plaintiff's Attorney: Ashley Alderson
Defendant's Attorney: Lundsay Gorton
Description: Nashville, Tennessee family law lawyers represented the parties in a child custody dispute under the Hague Convention on Civil Aspects of International Abduction.
Tescari and Salame are Venezuelan citizens and have two minor children together, EAST
and PGST. In 2018, Tescari removed the children from their home in Barquisimeto, Venezuela,
and brought them with her to the United States. Salame filed a petition under the Hague
Convention seeking the children’s return on February 20, 2019. Tescari and, as derivative
family members, the children were granted asylum in the United States on June 10, 2019. The
district court held a bench trial on Salame’s petition on July 30, July 31, August 6, and December
6, 2019.
The parties stipulated to the applicability of the Convention and to the following facts:
(1) EAST and PGST are under the age of sixteen; (2) EAST and PGST’s habitual
residence is Venezuela for the purposes of the Convention; (3) Petitioner had
rights of custody, as contemplated by the Convention, under Venezuelan law at
the time the Children were removed from Venezuela; (4) Petitioner was
exercising rights of custody with respect to the minor Children at the time
Respondent removed them from Venezuela; (5) Pursuant to the Hague
Convention, Respondent wrongfully removed the Children from Venezuela and
their retention in the United States is wrongful under Venezuelan law; and
(6) Petitioner filed his Petition for Return on February 20, 2019, which is within
one year of the Children’s removal from Venezuela.
Ajami v. Solano, No. 3:19-cv-00161, 2020 WL 996813, at *3 (M.D. Tenn. Feb. 28, 2020). This
stipulation established Salame’s prima facie case of wrongful removal, so the only issue before
the district court was whether Tescari established an affirmative defense under Article 13(b) of
the Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11,670. See 22 U.S.C. § 9003(e)(2);
Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996).
The district court concluded Tescari failed to establish, by clear and convincing evidence,
her affirmative defense that returning the children to Venezuela would subject them to a grave
risk of physical or psychological harm or otherwise place them in an intolerable situation. It
therefore granted Salame’s petition and ordered that the children be returned to Venezuela.
Outcome: We affirm the district court’s order that EAST and PGST be returned to their habitual residence in Venezuela.
Plaintiff's Experts:
Defendant's Experts:
Comments: