Full opinion text
MEMORANDUM TRAUGER, District Judge. On August 3, 2000, Perry A. March filed a Petition for Return of Minor Children Pursuant to International Child Abduction Remedies Act, seeking the return of his two minor children, Samson Leo March, age 10, and Tzipora Josette March, age 6, to Mexico. The respondents, Carolyn R. Levine and Lawrence E. Levine, grandparents of the children, had removed them from Mexico on June 21, 2000 and brought them to Nashville, Tennessee pursuant to a visitation order issued by a court in Chicago, Illinois. Petitioner March has filed a motion for summary judgment (Docket No. 34), and the respondents have moved to dismiss the case based’on several grounds, including the fugitive disentitlement doctrine (Docket No. 51). A. Legal Standard Petitioner seeks the return of his children pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that summary judgment may be rendered if “there is no genuine issue as to any material fact and that the moving party is entitled to a. judgment as a matter of law.” FED.R.CIV.P. 56(c). This court finds that this type of case is appropriate for resolution by summary judgment. Indeed, the language of the Convention supports resolution by such means. Article 11 provides that a court, when faced with a petition under the Convention, should “act expeditiously in proceedings for return of children.” Hague Convention, art. 11. Courts are to place these cases on a “fast track” in order to expedite these proceedings and carry out the purposes of the Convention. The language of the Convention also authorizes courts to “take notice directly of the law of, and of judicial and administrative decisions, .formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.” Hague Convention, art. 14. See also 42 U.S.C.A. § 11605 (“[N]o authentication of such application, petition, document, or information shall be required in order for the application, petition, document, or information to be admissible in court.”) There is no requirement under the Hague' Convention or under the ICARA, 42 U.S.C.A. § 11601 et seq., that discovery be allowed or that an evidentiary hearing be conducted. See Sinclair v. Sinclair, 121 F.3d 709, 1997 WL 428897, at *1 (6th Cir. Jul.30, 1997) (unpublished opinion) (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir.1994)) (finding appellant’s argument that the district court refused to hear testimony of two witnesses without merit). See also Kovacevich v. Kent State Univ., 224 F.3d 806, 831-33 (6th Cir.2000). Thus, under the guidance of the Convention and the statutory scheme, the court is given the authority to resolve these eases without resorting to a full trial on the merits or a plenary evidentiary hearing. See, e.g., Shalit v. Coppe, 182 F.3d 1124 (9th Cir.1999) (affirming district court’s granting of summary judgment in favor of respondent in ICARA case). B. The International Child Abduction Remedies Act This petition is brought pursuant to the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C.A. § 11601 et seq. (1995). The ICARA was enacted in order to implement the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”). Both the United States and Mexico are signatories to this multi-nation treaty. (Docket No. 84, Response to Petitioner’s Statement -of Undisputed Facts No. 1) The Hague Convention was adopted by the signatory nations in order “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Hague Convention, Preamble. Actions brought under the Convention are to be resolved as expeditiously as possible. See Hague Convention, art. 11 (“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.”). Under the Convention, the removal of a child from one country to another country is to be considered wrongful when 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. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Hague Convention, art. 3. As the petitioner, March has the burden of showing by a preponderance of the evidence that the removal of his minor children from Mexico was wrongful as defined by the Convention. See 42 U.S.C.A. § 11603(e)(1)(A). Once the petitioner meets this burden, then the burden shifts to the respondents to establish “(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies”; or (B) “by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.” 42 U.S.C.A. § 11603(e)(2). Thus, the person opposing the return of a child must establish: 1) by clear and convincing evidence that there is a grave risk that the return of the child would expose the child to physical or psychological harm; Hague Convention, Article 13b, 42 U.S.C. § 11603(e)(2)(A); 2) by clear and convincing evidence that the return of the child ‘would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms’; Hague Convention, Article 20, 42 U.S.C. § 11603(e)(2)(A); 3) by a preponderance of the evidence that the proceeding was commenced more than one year after the abduction and the child has become settled in its new environment; Hague Convention, Article 12, 42 U.S.C. § 11603(e)(2)(B); or 4) by a preponderance of the evidence that [the petitioner] was not actually exercising the custody right at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; Hague Convention, Article 13a, 42 U.S.C. § 11603(e)(2)(B). Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) (“Friedrich I ”). C. Wrongful Removal or Retention The respondents argue that the petitioner cannot carry his initial burden of proof because there has been no wrongful removal or retention of the two minor children. Under the Hague Convention, “ ‘wrongful removal’ refers to the taking of a child from the person who was actually exercising custody of the child” and “ ‘wrongful retention’ refers to the act of keeping the child without the consent of the person who was actually exercising custody.” 51 Fed.Reg. 10494,10503 (1986) (Hague International Child Abduction Convention: Text and Legal Analysis). In their .Answer, the respondents state that the two minor children were not wrongfully removed from Mexico because they “lawfully had physical custody of the Children at the time they were returned to the United States.” (Docket No. 22 at 1) Furthermore, the children have not been wrongfully retained in the United States because “[t]hey have remained pursuant to an Order of the Juvenile Court for Davidson County, Tennessee.” Id. The court finds this argument without merit. In October 1999, the Circuit Court for Cook County (Chicago), Illinois granted the Levines petition for grandparent visitation, allowing them prescribed times of visitation with the children. (Docket No. 54, Ex. 7) On May 17, 2000, the Circuit Court ordered, in response to the Levines’ emergency petition for “catch-up” visitation under the October 1999 order, that “the minor children ... be immediately turned over to the Levines’ physical custody for visitation for an uninterrupted period of 39 days (Docket No. 26, Ex. 1(a)).. Pursuant to a Letter Rogatory issued by the Illinois court, the respondents were able to secure a Mexican court order to enforce the Illinois visitation order. See Docket No. 26, Ex. 2; Docket No. 103. It was on the basis of these orders that the respondents were able to remove the children from their school in Mexico on June 21, 2000. The respondents did not return the children to their father after the period of visitation because, by that time, they had secured a court order from the Nashville Davidson County Juvenile Court granting them temporary custody of the children (beyond visitation rights) pending a determination on their petition to terminate the parental rights of the father. On January 21, 2000, the Probate Court for Davidson County had entered judgment by default in favor of the Levines, as a discovery sanction, in a wrongful death action brought by the Levines against Perry March for the death of their daughter, Janet Gail March. (Docket No. 54, Ex. 1) Effective May 8, 2000, at the behest of the Levines, Tenn.Code Ann. § 36 — 1— 113(g) had been amended to add, as a ground for the termination of parental rights, the fact that the surviving parent “has been convicted of or found civilly liable for the intentional and wrongful death of the child’s other parent or legal guardian.” On the basis of this wrongful death judgment and the new amendments, the Levines filed a petition in the Juvenile Court for Davidson County, Tennessee on July 3, 2000 for the termination of Perry March’s parental rights and an award of custody of the minor children. See Docket No. 54, Levines’ Affidavit at ¶ 30. Under the ICARA and the Hague Convention, custody and visitation rights are to be determined in the courts of the country that is the “habitual residence” of the children. See Hague Convention, art. 19; 42 U.S.C.A. § 11601(b)(4). See also Friedrich II, 78 F.3d at 1063. The prime purpose of the ICARA and the Convention is to prevent one parent from removing the children from their “habitual residence” and bringing them to the removing parent’s residence in order to have the “home court advantage” of a custody determination by a court where the removing party is living. See id. at 1064 (“[T]he Hague Convention is generally intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.”). So if Mexico was the “habitual residence” of these children at the time the Levines removed them to Nashville, then it would violate the Convention and federal law for the Davidson County Juvenile Court to determine that their permanent custody should be transferred to their grandparents. The Hague Convention and federal law would mandate that, in the absence of an “exception” to an order of return (to be discussed hereafter), the Le-vines seek permanent custody of the children in the courts of Mexico. And if that is the case, the temporary custody order of the Davidson County Juvenile Court does nothing to negate the fact that the Levines are wrongfully retaining the children in Nashville after the expiration of their court-ordered 39 days of grandparent visitation. D. Habitual Residence March asserts that Samson and Tzipora were habitual residents of Mexico when they were removed by the Levines. The Levines argue that Illinois is the habitual residence of these children. The Convention and the enabling legislation do not define “habitual residence.” In Friedrich I, the Sixth Circuit stated that the concept of habitual residence under the Convention is not to be confused with domicile. Thus, to determine the habitual residence of minor children, “the court must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich I, 983 F.2d at 1401. Furthermore, “[o]n its face, habitual resi-0 dence pertains to customary residence pri- or to removal.” Id. Additional guidance is found in Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995), where the court, relying on Friedrich I and In re Bates, held that a “child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimitization and which has a ‘degree of settled purpose’ from the child’s perspective.” Feder, 63 F.3d at 224. See also Pesin v. Osorio Rodriguez, 77 F.Supp.2d 1277, 1284 (S.D.Fla.1999) (“Under the Hague Convention, the relevant period of habitual residence is that span of time ‘immediately before’ the date of the alleged wrongful retention.”)’. Both children were born in Nashville, Tennessee and resided in Tennessee from their births until mid-September 1996. From mid-September 1996 until mid-May 1999, the children lived with their father in Illinois. The children lived in Jalisco, Mexico with March from mid-May 1999 until the Levines removed them to Nashville. Thus, the minor children were present in Mexico for a little over a year prior to their removal by the Levines. This is certainly a long enough period of time to establish habitual residence. See Feder, 63 F.3d at 224 (finding six months to be significant period of time for four-year old child to have stayed in Australia in concluding Australia to be child’s habitual residence). The most important factor in the analysis is the child’s circumstances in the country alleged to be the habitual residence. In August 1999, the petitioner’s two children started attending Oak Hill Academy in Ajijic, Jalisco, Mexico. See Feder, 63 F.3d at 224 (finding child’s attendance at school in Australia to be significant, stating that he was “participating in one of the most central activities in a child’s life”). Samson entered the third grade and Tzipora was enrolled in Preprimary or Kindergarten. (Docket No. 78, Palfrey Declaration at ¶ 4) According to Wayne C. Palfrey, the Director of Oak Hill Academy, “[b]y the end of the school year, both children had obtained a working and useful knowledge of Spanish, and they were successful in their course studies. Both children were promoted to the next grade.” (Docket No. 78, Palfrey Declaration at ¶ 6) March was a member of the Board of Directors of the Oak Hill Academy as a representative of the Tzipora’s class. Id. at ¶ 9. The children participated in school activities, and March and Carmen Rojas de March were also involved in these activities. Id. at ¶¶ 7, 20-21. The children were also involved in extracurricular activities in Mexico. (Docket No. 40, March Declaration at ¶ 72 (“Samson continued with his cello studies ..., and with horseback riding.”), ¶ 73 (“Tzipi danced ballet, and was socializing very well.”)) In addition to attending school in Mexico, the children’s family situation changed in a way that further demonstrated a degree of settled purpose to their presence in Mexico. In the summer of 1999, March and his children began living with Carmen and her three minor children, Daro, Thomas, and Cinty. After March and Carmen were married in March 2000, Carmen initiated legal proceedings to adopt Samson and Tzipora. See Docket No. 38, Carmen Rojas de March Declaration at ¶ 18, Ex. A. See also Palfrey Declaration at ¶ 13 (stating that he “enthusiastically recommended Carmen’s adoption of the children to the Jalisco Family Adoption Agency.”). The respondents contend that there is a “lack of a settled purpose” in the children’s presence in Mexico for a variety of reasons: “(1) the wrongful removal of the Children from Illinois in the midst of a visitation dispute there, and his wrongful detention of the Children in Mexico ...; (2) the Children’s potentially illegal entry into Mexico; (3) the Children’s father’s status as a fugitive from at least two criminal warrants for his arrest ...; (4) March’s illegal conduct in Mexico, which subjects him to deportation ...; and (5) March’s willingness to marry Carmen Rojas in violation of Mexican bigamy law .... ” (Docket No. 84 at 23) These contentions simply are not relevant for purposes of deciding whether Mexico or Illinois is the habitual residence of the children under the ICARA. First, the cases are clear that there need not be a decision to remain somewhere indefinitely for it to be considered the child’s habitual residence. See Feder, 63 F.3d at 223-24 (citing In re Bates); Kanth v. Kanth, 79 F.Supp.2d 1317, 1321 (D.Utah 1999); In re Ponath, 829 F.Supp. 363, 367 (D.Utah 1993); Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993). Second, the “degree of settled purpose” is to be analyzed not from the parent’s perspective but from the child’s perspective. Feder, 63 F.3d at 224. The primary information about the child’s perspective comes from the court’s own in camera interview with the children. On September 15, 2000, the court interviewed Samson and Tzipora March in chambers with the assistance of a licensed clinical psychologist selected by the court. Samson, who is ten, expressed great enthusiasm for his school in Mexico (“I loved it; it was great.”), for Carmen (“She is just wonderful. She’s real nice with me and Zippy.”) and for living in Mexico (“It’s perfect weather all year ‘round.”). Tzipora (“Zippy”), at age six, was, of course, less articulate. But she loves her house in Mexico, referred to one of Carmen’s children as her “little brother,” likes her school there, and “especially” wanted to hug Carmen. Both children seemed well-adjusted, bright, responsive and surprisingly unscarred by the turmoil surrounding them for the last four years. The court also looks to March’s own statements about why he moved to Mexico as evidence of his intentions as to his children’s presence in Mexico. See Feder, 63 F.3d at 224 (focusing on the “parents’ present, shared intentions regarding their child’s presence” in country). According to March, he moved with his children to Jalisco, Mexico, where his father lives, “for employment, enjoyment and a fresh start.” (Docket No. 40, March Declaration at ¶ 28) He states that, “I left Illinois in part because I was unable to earn a sufficient living in Illinois to maintain my children in the manner I was accustomed to and wanted to, for their benefit.” Id. at ¶ 29. It is clear that the petitioner’s move, at the time that it was made, had a settled purpose. See Feder, 63 F.3d at 223 (“Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode .... All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”). The respondents argue that the petitioner should not be allowed to “create a habitual residence for the Children by brazenly refusing to abide by Court orders issued in the United States.” (Docket No. 50 at 3) The respondents lose sight of the fact that, at the time the petitioner left Illinois, the issue before the Illinois court was a matter of their visitation rights, not the custody of the children. The issue of grandparent visitation was pending before the Illinois court at the time of the move to Mexico, but it seems clear that March did not move to Mexico “to require litigation of custody matters in the new country.” (Docket No. 50 at 4) At the time of his move to Mexico, there was no custody matter to be decided in Illinois, Tennessee, or anywhere else in the United States. The Levines had not yet sought permanent custody of their grandchildren. The Levines also point to March’s assertion to the Illinois court that Illinois has “exclusive personal and subject matter jurisdiction of the parties and the minor Children.” See Docket No. 84 at 21 (quoting Docket No. 26, Ex. 5(a) (Emergency Motion for Immediate Turnover of Minor Children, filed July 5, 2000)). In support of this emergency motion, March stated that (1) he has an Illinois driver’s license and that is his only driver’s license; (2) he has bank accounts in Cook County, Illinois; (3) he is registered to vote in Illinois; and (4) Illinois is where he intends to vote either in person or by absentee ballot. See Docket No. 26, Ex. 5(a), March Affidavit at ¶¶ 5-8. The Levines argue that these statements “run contrary to his assertion now that Mexico is the habitual residence of the Children and that questions of custody should be litigated there.” (Docket No. 84 at 22) This argument is without merit. March clearly states in this Affidavit that he has been living in Mexico with his children since May 1999. He asserts that “[ejvery United States Citizen is entitled to a State of Citizenship.” (Docket No. 26, Ex. 5(a), March Affidavit at ¶ 4) He makes the statements the Levines rely upon in an effort to make the case that, as between Illinois (where he and the children lived from September 1996 to May 1999 and where three years of grandparent visitation litigation took place) and Tennessee (where he and the children have not lived since September 1996), Illinois ought to be the venue in which this, now, custody battle is fought. March’s statements in this Affidavit cannot be interpreted to negate his claim that Mexico is the habitual residence of the two minor children. The court finds that March has carried his burden of establishing that the habitual residence of the two minor children, Samson and Tzipora, is Mexico. E. Rights of Custody Under the ICARA, the petitioner must also establish by a preponderance of the evidence that he was exercising custody rights over his minor children in Mexico under Mexican law at the time the children were removed from Mexico. See Friedrich II, 78 F.3d at 1064. Article 3 of the Convention provides: “[t]he rights of custody ... may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Hague Convention, art. 3. Once the court finds that the petitioner was exercising custody rights over the minor children, “the court should stop — completely avoiding the question whether the parent exercised the custody rights well or badly.” Friedrich II, 78 F.3d at 1066. Under Mexican law, the petitioner’s rights of custody arise by operation of law. One source explains custodial rights in Mexico as follows: Deriving from the Roman law and the civil law is the concept of patria potes-tad, which is the parents’ responsibility to care for the child, reside with the child, and provide for the child’s necessities, including food, education and development. The patria potestad gives a right to correct the child, the right to control and manage any property or rights the child may have and the right to the child’s assistance. By law, the right to patria potestad belongs to both parents, but the exercise of the right, by necessity, normally involves one decision-maker. Concurrence or agreement is not required. Historically, the father had superior rights of the patria potes-tad, but today it is a joint responsibility. If the parents are deceased or unavailable, the paternal grandparents may exercise the patria potestad. If the paternal grandparents are unavailable, the maternal grandparents may exercise the patria potestad. Antoinette Sedillo Lopez, International Law— U.S./Mexico Cross-Border Child Abduction—The Need for Cooperation, 29 N.M. L. REV. 289, 297 (Spring 1999). See also 1996 WL 915784, Código Civil para el Distrito Federal (C.C.D.F.) art. 412 (“An unemancipated minor shall be under the parental authority of any existing parental ascendant, who in turn shall exercise that authority in accordance to Law.”); 1996 WL 915790, C.C.D.F. art. 418 (“In the absence of parents, parental authority shall pass to the remaining ascendants ... in the order to be determined by the Family judge, who shall take into consideration the particular circumstances of the case.”) Under Mexican law, March, as the natural father of the minor children, was exercising his custody rights at the time the two minor children were removed from Mexico by the Levines. F. Statutory Defenses ■ In objecting to the retm-n of the children to Mexico, the respondents raise two statutory defenses under the Hague Convention and the ICARA. The respondents argue that the minor children should not be returned to Mexico to the custody of the petitioner because (1) there is a grave risk that the return of the minor children to Mexico would subject them to psychological and physical harm and would place them in an intolerable position; and (2) the return of the minor children to Mexico would violate human rights and fundamental freedoms. (Docket No. 22 at 3-4) 1. Grave Risk of Harm The respondents raise as affirmative defenses in their Answer their “grave risk” allegations. They assert that a return to Mexico would subject the children to: (1) “psychological harm;” (2) “physical harm in that, among other things, March and his agents have threatened to kill the Levines and members of their family and it is physically unsafe for the Levines or the Children to have child custody matters litigated in Mexico;” and (3) “an intolerable situation in that, among other things, they would be expected to reside with the individual who murdered their mother.” (Docket No. 22 at ¶¶ 5-7) They also argue that “March’s communications with the Children, his persistent failure to abide by valid court orders, and his other conduct, raise substantial questions about the danger of physical or psychological harm to the children or to the Levines in the event the Children are returned to Mexico, and as to whether the Children would be placed in an intolerable situation there.” (Docket No. 84 at 43) Although they requested the opportunity to take discovery, the respondents have put into this record volumes of evidence in support of their allegations. See, e.g., Docket No. 54 with attached exhibits. Under Article 13b, a court may decline to order the return of a child if the person opposing the return of the child establishes by clear and convincing evidence that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13b. See also 4U.S.C.A. § 11603(e)(2)(A). Article 13 also provides that the court “shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” It is clear that, in evaluating whether the person opposing the return of the child has established that there is a grave risk of harm, the court is not to make a determination of the child’s best interest. As stated in the often quoted case, Tahan v. Duquette, 259 Ñ.J.Super. 328, 613 A.2d 486, 489 (A.D.1992): the Article 13b inquiry was not intended to deal with issues or factual questions which are appropriate for consideration in a plenary custody proceeding. Psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships all bear upon the ultimate issue. The Convention reserves these considerations to the appropriate tribunal in the place of habitual residence .... No court on a petition for return should intrude upon a foreign tribunal’s subject matter jurisdiction by addressing such issues. Furthermore, “[a] decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Hague Convention, art. 19. See also 42 U.S.C.A. § 11601(b)(4). In Friedrich II, the Sixth Circuit adopted a “restrictive reading” of the “grave risk” exception, stating that “a grave risk of harm for the purposes of the Convention can exist in only two situations.” Friedrich II, 78 F.3d at 1069. Those situations are: First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute — e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. Id. The cases that have addressed whether the removing parent has established the Article 13b “grave risk” exception by clear and convincing evidence demonstrate that this exception is truly to be narrowly construed. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376 (8th Cir.1995). In Nunez-Escudero, the mother, in opposing the return of her child to the father in Mexico, argued that there was a grave risk that the child’s return to Mexico would subject him to physical or psychological harm or would place him in an intolerable situation. In support, she submitted evidence that, while in Mexico, she had been physically, sexually and verbally abused by her husband, the father of the child. She also stated that she feared for the child’s safety because her husband refused to purchase a car seat for the child. She also offered evidence that her father-in-law was verbally abusive and that she had seen him hit his youngest son. The appellate court rejected the mother’s “grave risk” argument, stating “[t]he evidence is general and concerns the problems between [the mother], her husband and father-in-law.” Id. at 377. In reversing and remanding, the Eighth Circuit instructed the district court “not to consider evidence relevant to custody or the best interests of the child,” and clarified that the “Article 13b inquiry must encompass some evaluation of the people and circumstances awaiting that child in the country of his habitual residence.” Id. at 378. In an earlier Eighth Circuit case, Rydder v. Rydder, 49 F.3d 369 (8th Cir.1995), the court affirmed the district court’s determination that the mother had not shown the existence of a “grave risk” by clear and convincing evidence. The mother had pointed to “no specific evidence of potential harm” to the children, relying merely on journal articles that concluded that separating a child from the primary caretaker creates a risk of psychological harm. Rydder, 49 F.3d at 373. In Tabacchi v. Harrison, 2000 WL 190576 (N.D.Ill. Feb.10, 2000), the respondent offered evidence of her husband’s history of repeated physical and verbal abuse towards her, including incidents where her husband slapped her, hit her on the head, grabbed her and threw her to the ground, allegedly choked her, and hit her in the face with his arm. The.court found that, on the two occasions that the child was present during altercations between the parents, the child was not harmed. Furthermore, the court found that the father never struck the child and only yelled at the child, as the mother did, when the child disobeyed. The court found that, based upon the evidence offered by the mother, the primary risk of harm was to the mother and not to the child. While emphasizing that “[the husband’s] behavior toward his wife is unacceptable, to qualify as a grave risk of harm under the convention, the risk must be to the child.” Tabacchi, 2000 WL 190576, at *13. In Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 850 (Ky.Ct.App.1999), the court found that the respondent had failed to satisfy her Article 13b burden despite her evidence that, during a “violent rage,” her husband had pushed her and the child to the floor, that her husband had pulled her hair such that he caused her to be hospitalized with severe neck injuries, that her husband regularly punished the child by “givfing] her a smack on the back,” and that her husband had, on one occasion, - torn up the child’s passport. The respondent had also offered evidence from a psychologist that the child suffered from post-traumatic stress syndrome, had probably been sexually, physically and emotionally abused, and suffered from neglect. Despite this evidence, the court found that “[tjhere is absolutely no competent evidence before the Court that [the child] has been abused or neglected by [the father], or that [the child] faces certain danger in Greece. Likewise, there is no evidence that the courts in Greece cannot protect [the child].” Janakakis-Kostun, 6 S.W.3d at 850-51. In Currier v. Currier, 845 F.Supp. 916 (D.N.H.1994), the district court held that the return of the children would not place them in grave risk of harm and ordered their return to Germany.' The father of the children had argued that their mother was depressed and estranged from her parents, but the court found that “there was no evidence she ever failed the children or placed them in actual danger.” Currier, 845 F.Supp. at 923. The court noted that “[w]hile this court is required to ‘evaluate the surroundings to which the [children are] to be sent and the basic personal qualities of those located there,’ the court’s focus is limited to the grave risk, if any, that situation seriously presents for the children.” Id. (citing Tahan, 613 A.2d at 486). The court found “no credible evidence raising any serious doubt . about the safety, propriety, or nurturing character of the German environment to which the children would return.” Id. And finally, in Steffen F. v. Severina P., 966 F.Supp. 922 (D.Ariz.1997), the mother, opposing the father’s petition for return of the child to Germany, argued that there was a grave risk of harm because the father had molested her daughter by a prior relationship. The court rejected the • mother’s argument, finding that there was no evidence that the child to be returned had been molested. Although the court found that it was “highly probable” that the mother’s daughter had been sexually abused in the past, the court found that the mother had not “shown by clear and convincing evidence that [the father] was responsible for that abuse.” Steffen F., 966 F.Supp. at 926. Thus, the court could not infer that there was a risk of physical harm to the child if he were returned to the father or that the father was an unfit parent. Indeed, the few cases that have denied a petition for return on the basis of the “grave risk” exception have generally emphasized that there was clear and convincing evidence 'to support a finding that the parent seeking the return had seriously abused the child. For example, in Rodriguez v. Rodriguez, 33 F.Supp.2d 456, 459-61 (D.Md.1999), the district court denied the petition for return of three children to Venezuela where there was extensive evidence of physical and psychological abuse of the oldest child and the mother by the father who sought the return. In that case, the oldest child, who was 13 years old, testified that his father began to physically abuse him when he was six years old. One such beating caused him to miss a week of school. During another incident, the father kicked the child in the back, hit him with his fists and told him that he could not tell anyone about the beating. The mother also testified about the physical and verbal abuse of the oldest child, including incidents in which the father punched him, hit him with a belt, and scratched his face. There was testimony that the father kept handguns in the house and would brandish the guns while drinking. A psychologist testified that the two oldest children and the mother suffered from post-traumatic stress disorder. See also Blondin v. Dubois, 78 F.Supp.2d 283, 285 (S.D.N.Y.2000) (“Blondin III ”) (court denied father’s petition for return, finding that father beat the daughter frequently and threatened her life, including incident where father twisted piece of electrical cord around her neck, and had also threatened to throw son out the window); Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir.2000) (court denied father’s petition for return, finding, among other things, that father had repeatedly beaten 20-year-old son from prior relationship and younger children had frequently witnessed the father’s violent assaults). But see Panazatou v. Pantazatos, 1997 WL 614519 (Conn.Super. Sept.24, 1997) (court issued interim decision, pending resolution of undertaking process between the parties, finding that mother had established “grave risk” exception based on testimony that separation of child from mother would cause psychological harm and based on the mother’s fears of her husband’s anger). Of some importance to this court on the issue is the fact that, throughout the three years of grandparent visitation litigation in Illinois, the Levines never claimed that March was an unfit parent (Docket No. 40, March Declaration at ¶ 135, Ex. C at 8), nor did they seek custody. The facts supporting. their present assertion of grave risk of harm to the children arising out of the disappearance of their daughter were all known to the Levines throughout this period, yet that allegation was not made. Their struggle centered on visitation rights. Now, however, having secured by default a civil wrongful death judgment against March, who has never been criminally charged in connection with his wife’s disappearance, their contention that March killed their daughter somehow has taken on the dimension of child abuse, And they now have a judgment saying he killed her. On October 30, 1996, Perry March filed, a petition in the Probate Court for Davidson County, Tennessee seeking, among other things, the transfer of certain bank accounts held by Janet March to him. The Levines filed an intervening petition as the parents and next friends of Janet March and “as grandparents of the two children” opposing the transfer of any property to Perry March. March v. Levine, 1999 WL 140760, at *1 (Tenn.Ct.App. Mar.17, 1999). Although not clear from the record before this court, it appears that, in July 1999, the Levines then filed, as an amended intervening petition, a wrongful death claim against Perry March in the Probate Court, alleging that Perry March had killed Janet March, their daughter. See Docket No. 54, Levines’ Affidavit, Ex. 1 at 2. March apparently did not cooperate in the discovery phase of that case and, as a discovery sanction under Tennessee Rule of Civil Procedure 37.02(C), the court ordered his answer to the wrongful death claim stricken, found the allegations in the Levines’ amended intervening petition alleging wrongful death to be thus uncontested and declared true and correct, entered judgment by default against March, and precluded him from presenting any testimony as to any defenses to the wrongful death claim contained in the amended intervening petition. (Docket No. 54, Levines’ Affidavit, Ex. 1) In the accompanying Appendix to Judgment by Default and Findings of Fact, clearly prepared by the Levines’ counsel, the court made twelve “factual findings” based upon no proof, among which were these: 2. Over time, beginning in 1990, Perry March became increasingly physically, verbally, and emotionally abusive toward Janet Levine March.... 4. On August 15,1996, after a heated argument, Perry March intentionally inflicted severe, physical harm and serious bodily injury on Janet Levine March. Perry March’s intentional physical assault caused such severe bodily injury to Janet Levine March that she died. As a direct, proximate result of Perry March’s violent and brutal act, Janet Levine March died on August 15, 1996 or very shortly thereafter.... (Docket No. 54, Levines’ Affidavit, Ex. 1) On February 8, 2000, a jury was empaneled to hear proof on damages only proximately caused by Perry March, “who wrongfully, intentionally, recklessly, maliciously and fraudulently killed his wife.” (Docket No. 54, Levines’ Affidavit, Ex. 2) On April 25, 2000, a verdict was returned in favor of the Levines individually, as the next friends of Janet Gail March, and as the next friends of the minor children and for their use and benefit, in the total amount of $113,500,000. Id. at 3. The Levines do not assert that the alleged abuse of Janet March by Perry March that began in 1990 or his alleged killing of her in 1996 took place in front of the children or that those acts were ever known to the children. Instead, they argue that his alleged killing of Janet “has deprived the Children forever of Janet’s love, affection, attention, devotion and guidance.” (Docket No. 54, Levines’ Affidavit at ¶ 5) Much more is required under the case law to establish this exception of grave risk of harm to the children by clear and convincing evidence. See Tabacchi, 2000 WL 190576, at *13 (although finding that the petitioner-father had repeatedly physically and verbally abused the respondent-mother, the court found the “grave risk” exception not established because, “under the convention, the risk must be to the child”). The Walsh case, relied upon by the respondents for this point, is distinguishable. Most importantly, in Walsh, the court was deciding whether to return the children to a parent in Ireland or leave them with the other parent in Massachusetts. The First Circuit reversed the district court, which did not apply the “grave risk” exception to these facts. The petitioning father, who sought the return of the children to Ireland, had a history of assaults, “bloody and severe,” committed upon his wife, his children and other persons, some “much younger than he.” Walsh, 221 F.3d at 220. He even hauled his eight-year-old daughter into a “bloodied room” to witness the aftermath of a vicious fight with her half-brother and instructed her to tell her half-brother to leave. Id. at 210, 222. She was later diagnosed with post-traumatic stress disorder. Id. at 211. Nothing approaching these facts has even been alleged in this court by the Levines. And they misconstrue the appellate court’s criticism of the district court’s giving “insufficient weight to [the father’s] chronic disobedience of court orders.” Id. at 219. The court orders that the father disobeyed in Walsh were protective orders, enjoining him from threatening or using violence against his wife or “watch[ing] or besetting]” her residence. Id. at 210. The district court had ordered the children returned to Ireland with specific “undertakings” agreed to by the father. See Application of Walsh, 31 F.Supp.2d 200, 207 (D.Mass.1998). The appellate court apparently had little hope that the father would keep his promises, given his history of disobedience to protective orders. This court is not presented with a remotely similar situation. The respondents also point to several surreptitiously tape-recorded telephone conversations between March and his children on July 4, 2000 as evidence that there is a “grave risk” that the return of the minor children to Mexico will subject them to physical or psychological harm. It is clear in what is labeled the “1st Conversation” that Perry March had just learned that, the day before, the Levines had filed a petition in the Juvenile Court for Davidson County, Tennessee, seeking permanent custody of the children. They also had secured a restraining order allowing the children to remain in the temporary custody of the Levines pending further hearings and enjoining the petitioner, the petitioner’s father, Arthur March, and Carmen from all contact with the Levines and the children except “reasonable telephone contact and/or visitation that is strictly supervised by the Department of Children’s Services and the Davidson County Police Department.” (Docket No. 54, Levines’ Affidavit, Ex. 13) March’s worst nightmare has come true. (Docket No. 26, Ex. 5(c) at ¶ 11) “I have been telling you all along that when they get you down there they are going to try to file papers to keep you from me forever,” he tells Samson. March is desperate and angry. He is frustrated and hurt that Samson did not refuse to be .taken from his Mexican school by the Levines and that, at some point, he has told Carmen that he was happy being able to see his friends in Nashville. He sometimes shouts at Samson, but never at Tzipora, with whom he is gentle and loving. This attempt to “steal” his children, coupled with his paranoia about what he perceives to be the boundless power and influence of .the Levines (replete in the papers filed in this case) has driven him to the breaking point. He is demanding, abusive and controlling of Samson who, throughout, amazingly seems able to communicate an alliance with his father without really turning against his grandparents. It is these conversations that caused the court to conduct the in camera interviews with the children, a practice not uncommon in Hague Convention cases. See Sheikh v. Cahill, 145 Misc.2d 171, 546 N.Y.S.2d 517, 521-22 (N.Y.Sup.Ct.1989); In re Nicholson v. Nicholson, 1997 WL 446432, at *3-4 (D.Kan. July 7, 1997) See also Rania Nanos, The Views of a Child: Emerging Interpretation and Significance of the Child’s Objection Defense under the Hague Child Abduction Convention, 22 BROOK. J. INT’L L. 437 (1996). Samson was interviewed first. He seemed happy, relaxed and forthcoming. Samson appears to like all aspects of his life in Mexico (with the possible exception of having to wear a uniform to school). He has learned the Spanish language and likes to speak it, he likes his school, the chínate, and being with his grandfather, Arthur March, and he loves Carmen and her children. When asked if he is having nightmares, he stated that he was beginning to have them because he misses his dad and wants to go back to Mexico. This was the only point in the interview when Samson was close to tears. He stated that nothing about going back to Mexico makes him scared or nervous and that he is not afraid of anything or anyone there. When asked if his father ever hit him, he said only when he and his dad were fooling around. He seems totally unaware of his father’s alleged business problems in Mexico and the alleged use of guns by his grandfather or anyone else and substantially unaware of the turmoil surrounding this case. Neither the court nor the licensed clinical psychologist who assisted the court noted signs of deception or causes for alarm during this interview. Tzipora, who is six, likewise was relaxed during the interview. She can only be described as playful and delightful in every way. Throughout much of the interview, she was drawing a picture of a little girl thinking about hearts. She likes speaking Spanish, loves her house in Mexico, expressed enthusiastic affection for Carmen and referred to Carmen’s children as her siblings. She likes living with her grandparents but misses her father. What she would most like is for her father and “especially Carmen” to come here so that she could hug them and her grandmother and grandfather at the same time. She is not afraid of anything here or in Mexico, but did have a scary dream about snakes in Mexico once and a bad dream in Nashville after her brother told her a scary story. She did state that Daddy spanks but her Mommy never did before she went away or died. Again, there were no signs of deception or cause for alarm in her interview. The court’s observations are bolstered by the statements in the Declaration of Wayne C. Palfrey, the Director of the Oak Hill Academy in Mexico. Mr. Palfrey states that both children “did very well in school” and “were enjoyable, happy and engaging students.” (Docket No. 78, Palfrey Declaration at ¶ 5) They “obtained a working and useful knowledge of Spanish, and they were successful in their course studies.” Id. at ¶ 6. Mr. Palfrey “consistently observed” the children in the presence of March and Carmen, who “had a constant dialogue with the children’s teachers, and was very aware of their needs and schedules.” Id. at ¶¶ 10,12. He states that Perry March was “concerned about his children’s integration into the school,” “highly attentive to his children and engaged in their progress and activities.” Id. at ¶¶ 7-8. He continues that the children had “a very strong bond to Carmen and their father” and that he “enthusiastically recommended Carmen’s adoption of the children to the Jalisco Family Adoption Agency.” Id. at ¶¶ 13-14.Of particular relevance to the “grave risk of harm” inquiry are these observations made by Mr. Palfrey: 14. The children’s school records do not reflect any abuse, neglect or negative treatment by either Perry or Carmen. There was never any Mexican government investigation of maltreatment or abuse of the children, to our knowledge. 15. I have no reason to believe, and no knowledge of any facts to indicate, that the March children were the subject of any physical or psychological abuse, or were in any danger here at all. Their family situation here in Jalisco was, to my knowledge, and the knowledge of my staff, loving, normal and happy. 16. To my knowledge, Sammy and Tzi-pi had a normal social life, and we never received any reports from the families of other students reflecting adversely on the March children or their parents. 17. We are aware that the children took vacations as a family. Id. at ¶¶ 14-17. Mr. Palfrey states that he “personally asked the Levines to allow the children to finish their last three days of school, and the Levines refused me.” Id. at ¶ 24, Pursuant to 22 C.F.R. § 94.6(f) and in the interest of evaluating “the surroundings to which the child is to be sent and the basic personal qualities of those located there,” see Tahan, 613 A.2d at 489, this court requested through the United States State Department that the Mexican social service agency conduct a home study of the Perry March home, including Carmen and her children. (Docket Nos. 122-28) This request was made on August 11, 2000, eight days after the filing of this case. No direct response has come to that request but, on August 28, 2000, the court was furnished with the substantial equivalent of what was requested, apparently completed in connection with Carmen’s application to adopt the children. The report was written on August 14, 2000 by Maria Elena Rivera Hernandez, a social worker, and Abraham Beltran Alatorre, Deputy of the Children and Family Defense General Attorney, both of the Chapala DIF System, after these two individuals conducted a home visit at the March residence. These individuals state that the March children “lived a harmonious and normal life with their parents, Mr. Perry A. March and his wife, Mrs. Carmen Rojas de March.” (Docket No. 30) Noting that Carmen’s three children also live at the residence, they state, “All of them made up the family, all were in good health and protected by the parents, and enjoyed the safety of the Sub-Division they lived at which has private security.” Id. The report continues, “It has been observed that the children have always received family orientation, additionally to the love of their father and that of Mrs. Carmen Rojas. Likewise, the parents’ behavior is good; this agency has not received [any] claim as to the opposite nor regarding mistreatment of the children.” Id. The court’s in camera interviews with the children, the Declaration of Mr. Palfrey and the social services report are all in stark contrast to the picture of life in Mexico for the March children painted by the Levines in their filings with this court. The joint Affidavit of the Levines and its exhibits (Docket No. 54) contain most of what they allege, although their assertions are repeated throughout their papers. According to the Levines, March is engaged in shady business dealings and living in a bigamous relationship with Carmen. He and his gun-toting father have threatened the Levines, their family and lots of other people. Numerous arrest warrants have been issued in Mexico, and he and the children are about to be deported from Mexico. March, of course, disputes most of this. He claims that his troubles in Mexico began in 1999 when anonymous packages of video news clips and newspaper clippings about his allegedly killing his wife started arriving in the town where he lives. Letters of complaint against him were filed with immigration officials, requesting he be expelled from the country. March lays all of this at the feet of the Levines, whom he claims stirred up all the trouble and “poisoned the well” in his new home with theft accusations. See Docket No. 40, March Declaration at 14-17. This court has twice requested information from the U.S. State Department about the alleged deportation proceedings against Perry March. (Docket Nos. 124-25) No information has yet been forthcoming. This court, in its in camera interview of Samson, asked him about the presence of guns in Mexico. He stated that he had not seen any guns. Whatever business problems March may be having, whether or not the Levines have contributed to them, have had no effect on the children, so far as this court can determine. The Levines have submitted copies of three criminal complaints lodged against March in Mexico. See Docket No. 90. Ms. Tove Lindemann Midtun alleges in the first one, filed December 3, 1999, that March threatened her life “through a close friend” for defaming him and spreading information she had no knowledge of. (Docket No. 90, Ex. 1) March claims that (1) Ms. Midtun is an “agent/friend of the Levines;” and (2).he provided alibi information to the authorities and the complaint was dismissed. (Docket No. 40, March Declaration at ¶¶ 106-7) The second complaint was lodged by Peggy Jo Turner on April 14, 2000. She alleged that, on January 14, 2000, when she was at Perry March’s office on business, he threatened to “take care of her” if she did not “shut her mouth.” (Docket No. 90, Ex. 2) The third complaint was filed by Joel Nelson Rasmussen on August 21, 2000. He alleges that, on August 20, 2000, after he attempted to serve papers on March while March was eating at a restaurant with Carmen and her children, March drove past him and gestured a “death threat” by drawing °his finger across his throat. (Docket No. 90, Ex. 3) March has filed a copy of an assault complaint he has filed against Mr. Rasmussen in connection with the events on August 20, 2000, in which he claims Rasmussen attacked him arid Carmen in front of Carmen’s children. (Docket No. 40, March Declaration at ¶¶ 144-45, Ex. Q) March maintains that Turner and Rasmussen are among the Levines’ “agents” who were “constantly trying to cause us problems, calling me ‘killer,’ following Carmen, taking pictures of all of us.” Id. at ¶ 103. None of these complaints alleges anything improper taking place in the presence of the March children. The March children do not appear to be aware that there are arrest warrants out for their father. None of these complaints has yet resulted in the arrest of Perry March. There is an arrest warrant outstanding for the Levines as well in Mexico, secured by March, on the charge of kidnapping his children: (Docket No. 40, Ex. B) The court cannot find that these outstanding criminal complaints establish by clear and convincing evidence a grave risk of harm to the March children, should they be returned to Mexico. The Levines also rely on the Report of Guardian ad Litem Redina Friedman, a lawyer appointed by the Chicago court to represent the March children. (Docket No. 54, Ex. 10) Her report was filed July 19, 2000, after the Levines had filed papers in the Davidson County Juvenile Court seeking custody of the March children. Ms. Friedman’s report urges the Chicago judge to cede jurisdiction to the Davidson County court, since the Levines and the children (now) are there, and March no longer lives in Illinois. Ms. Friedman states that she has spent “approximately 8 hours with the children and the LEVINES in Tennessee” and “believe[s] that PERRY is emotionally abusing the children and is an unfit parent.” (Docket No. 54, Ex. 10 at 3) She states that March has “recently” enrolled the children in a private school in Mexico, Id. at 4, which, according to the undisputed evidence, is inaccurate. She states that the March children “do not seem particularly bonded with [Carmen’s] children as step-siblings” and do not express their love for Carmen or the fact that they miss her “of their own volition.” Id. These impressions are totally at odds with this' court’s impressions formed during the in camera interviews with the March children. Ms. Friedman, who is a lawyer, not a psychologist or social worker, does not state that she ever spoke to the children out of the presence of the Le-vines, as did this court, and it is clear that no licensed clinical psychologist was present with her to pick up cues regarding deception or psychological disturbance not obvious to a layperson, as was the case with this court’s interview. The court must view Ms. Friedman’s report as unduly influenced by the Levines and gives it little weight. Even if this court were to find that the Levines established the grave risk exception, much of the case law under the Hague Convention would mandate the return of the children to their father in Mexico anyway. In Blondin v. Dubois, 189 F.3d 240 (2d Cir.1999) (“Blondin II”), the Second Circuit held that, while there was evidence that supported the district court’s factual determination that returning the children to the father’s custody would expose them to “grave risk” of physical harm, remand to the district court was necessary for further consideration of the possible remedies that would allow the • children to be returned to their habitual residence and ensure their safety while the court in the country of the children's habitual residence made a custody determination. See also Friedrich II, 78 F.3d at 1067 (“[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.”); Walsh, 221 F.3d at 219 (“A potential grave risk of harm can, at times, be mitigated sufficiently by the acceptance of undertakings and sufficient guarantees of performance of those undertakings.”); Turner v. Frowein, 253 Conn. 312, 752 A.2d 955, 974 (2000) (although court found that there was sufficient evidence that the father had sexually abused son, court remanded to trial court and ordered trial court to “consider the range of placement options and enforceable remedies that might facilitate the child’s safe return pending a custody award in due course by the home court with proper jurisdiction”). On March 21, 2000, respondent Lawrence Levine addressed the Tennessee House of Representatives Committee on Children and Family Affairs concerning certain proposed amendments to Tennessee law. When asked by the chair of the committee why this bill was needed, Mr. Levine stated, “Janet March was murdered by her husband and we’ve got a civil judgment stating that he wrongfully and intentionally murdered my daughter. My grandchildren are living with the murderer right now down in Mexico and, if by some miracle they were ever to come back to the State of Tennessee, I would like the law to be very clear that I have a right to come and ask to take away their custody from the murderer.” Mr. Levine’s statements in this legislative committee meeting are revealing of the motivation behind the Levines’ attempt to persuade this court that the return of the children to their father would subject them to a serious risk of harm. At bottom, the serious risk of harm to these children, in the eyes of the Levines, is that they are being raised by the man they firmly believe murdered their daughter. To the Levines, being raised by a father whom the Levines believe to be a murderer is as abusive to these children as regular beatings or sexual abuse would be. This is not difficult to understand; indeed, surely most grandparents, believing what the Levines believe to be true, would feel the same way. However, this allegation