TN Kids Sent Back to Maduro’s Venezuela Despite Mom’s Plea for Asylum
Tennessee international child custody case summary. Hague convention. Grave risk of harm
Pierre Salame Ajami v. Veronica Tescari Solano
Hague convention. Grave risk of harm.
The parents in this Tennessee federal case were citizens of Venezuela. In 2018, the mother removed the children from Venezuela and brought them to the United States. In 2019, the father filed a petition under the Hague Convention for their return. The mother and children were granted asylum in the United States shortly thereafter.
Trial was held in the U.S. District Court for the Middle District of Tennessee, with Judge Eli J. Richardson presiding. The only issue remaining for trial was whether the mother established the 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 position. The District Court held that she had not met this burden, and therefore granted the petition, ordering the children back to Venezuela. The mother then appealed to the U.S. Sixth Circuit Court of Appeals.
Under the Hague Convention, which the U.S. ratified in 1988, custody decisions are typically left to the country of the child’s “habitual residence,” which was, in this case, Venezuela. But there is an exception if there is a grave risk to the child in going back to that country.
On appeal, the mother argued that this standard was met, because the father was abusive, the country is a zone of war and famine, and that the Venezuelan courts were unable to adjudicate the dispute. She also argued that the court should have considered the grant of asylum to the children.
The appeals court first examined the evidence concerning abuse, and agreed with the lower court that the mother had not met her burden on this point.
The court then turned to conditions in Venezuela. Citing earlier cases, the court noted that the party asserting this defense must show more than that it’s merely a country where money is in short supply.
The court cited a Massachusetts case in which Venezuela was deemed to be less of a threat than other countries, such as Syria, Somalia, Afghanistan, or Iraq. A Florida case, on the other hand, held that food and medicine shortages in Venezuela met the burden.
In this case, however, the district court had held that protests could be avoided by not traveling on certain streets, and that a grocery store near their home was well stocked. Overall, the district court concluded that the father could provide the children with food, shelter, and medication, and that this finding was not clearly erroneous.
The appeals court conceded that conditions in Venezuela were less stable than those in Tennessee. But overall, those conditions were not deemed to be comparable to a zone of war, famine, or disease.
The mother also argued that the courts of Venezuela were effectively closed to her because she cannot travel there without risk of harm to herself, and that her grant of asylum would make her a target for the Maduro regime. But the appeals court held that this issue was not properly raised in the lower court.
The mother finally argued that the Judicial Branch should have deferred to the judgment of the Executive Branch, which had granted her and the children asylum in the United States. But the appeals court quickly dismissed this argument, holding that the district court had authority to act, despite the prior grant of asylum. It cited a case from the Fifth Circuit holding that the procedure in this case was proper.
For these reasons, the Sixth Circuit affirmed, and held that the children must be returned to Venezuela.
No. 20-5283 (6th Cir. Mar. 29, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see Child Custody Laws in Tennessee and our video, How is child custody determined in Tennessee?
See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.
