Father and Mother had lived in Canada with their child. Mother is a US citizen. She removed the child to the US after a domestic dispute with Father. Father had started divorce proceedings in Canada. He filed a Petition under the International Child Abduction Act against Mother taking the child from Canada.

The Canadian court ordered Mother to return the child to Father in Canada. Mother appealed.

The Act contains a defense to a required return of the child. If Mother could show that the return would expose the child to a grave risk of physical or psychological harm. The Trial Court record contained a dispute as to whether the father physically abused mother in front of the child.

It is possible that the Trial Court judge ignored the mother’s testimony. So much of her testimony was about physical and psychological abuse of her by her husband. And by her husband’s parents, who lived with them. Rather than abuse of the child.

But much of that abuse occurred in the child’s presence. Repeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.

It was necessary for the case to be sent back to the Trial Court. That court needed to make findings on key issues with respect to claims of abuse by mother. Also, the Trial Court failed to let mother have reasonable time to submit psychological evidence on the child.

The Appellate Court directed that the child be returned to mother pending resolution of the case.

Khan v. Fatima, No. 12-1692, N.D. Ill., E. Div.

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