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Sande v. Sande

January 29, 2008

DAVY VAN DE SANDE, PETITIONER,
v.
JENNIFER SOVSKY VAN DE SANDE, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

On February 28, 2005, Petitioner Davy Van de Sande ("Davy"), a Belgium national, initiated this action against his wife Jennifer Sovsky Van de Sande ("Jennifer"), an American citizen, seeking the return of his minor children pursuant to the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§11601 et seq., the federal statute implementing the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980). This matter is here following remand and reassignment to the Court. The Seventh Circuit directed the Court to conduct an evidentiary hearing to resolve the merits of the Petition. Despite having notice of the hearing, Davy failed to appear,*fn1 and, accordingly, Jennifer opted to submit affidavits in lieu of live testimony. Pursuant to Federal Rule of Civil Procedure 52, the Court has evaluated the current record and concludes, for the reasons below, that the Petition fails on the merits. Fed. R. Civ. P. 52(a) ("In an action tried on the facts without a jury . . ., the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court."); see also Eirhart v. Libbey-Owens-Ford Co., 996 F.2d 837, 840 (7th Cir. 1993) ("Rule 52 allows for matters to be tried to the district court on a written record; we do not read the Rule to require that an evidentiary hearing be held." (citing authorities)).

FINDINGS OF FACT

I. The Custody Dispute

Davy is a citizen and national of Belgium and currently lives at Wouwerhoeve 44, 2430 Laakdal, Belgium. (R. 163-1, Motion to Withdraw; R. 1-1, Verified Petition ("Petition") at ¶5.) Jennifer is a citizen and national of the United States and currently lives in Ingleside, Illinois, 60041. (R. 174-1, Respondent Aff. at ¶1.) Davy and Jennifer are the parents of Kaitlynn Marie Van de Sande ("Kaitlynn"), a minor child who was born in Libertyville, Illinois on August 13, 2000 and Brandon William Van De Sande ("Brandon"), a minor child who was born in Diest, Belgium on January 20, 2003. (R. 174-1, Respondent Aff. at ¶3; R. 1-1, Petition at ¶7.) The two children are the subject of the Petition.

Davy and Jennifer wed on November 30, 1999 in Waukegan, Illinois and thereafter lived together with Jennifer's parents in Ingleside, Illinois. (R. 174-1, Respondent Aff. at ¶6.) Beginning two weeks after they were married and continuing until their separation in October 2004, Davy regularly and continually abused Jennifer physically and verbally. (Id. at ¶7.) Davy's beatings of Jennifer were frequent (occurring several times per week) and extreme. (Id. at ¶¶7, 13, 14, 16-18, 23, 25-30, 36.) Jennifer recounts multiple incidents where Davy has slammed her head against the wall, choked her, kicked her, kneed her, and punched her. (Id.) Davy even beat Jennifer while Jennifer was pregnant. (Id. at ¶¶7, 16.) For example, when Jennifer was seven months pregnant with Kaitlynn, Davy slammed Jennifer's head against a wall, choked her, and pushed her toward the top of a flight of stairs, threatening to topple her down them. (Id. at ¶7.) Jennifer's friend, Heather Anderson, witnessed this attack and provides a vivid description of the event:

On one evening in May or June, 2000, I was at the Sovksy residence. . . and saw Davy Van de Sande rush at Jennifer Van de Sande, put his right hand around her throat, and slam her against a wall, bouncing her head against the wall. When Jennifer's body hit the wall, a big picture hanging on the wall bounced and became crooked.

At that time, I was sitting at the dining room table. I said to Davy: "Get your hands off her. She's seven months pregnant. If you want to hit someone, hit me." He then took two steps toward me, raising his right hand and coming right up close to me. I then stood up and said: "Why don't you hit me, motherfucker. Show me how big a man you are." Davy said: "You're not the one pissing me off, stay the fuck out of this." I sat down. Then he turned around, lunged at Jennifer with his hand drawn back as if to strike her, and I jumped up again and approached them. Davy put his hands on Jennifer's shoulders and shoved her toward a flight of stairs leading to a lower floor. I grabbed Davy's shirt and pulled on it, and then grabbed Jennifer by the shirt to prevent her from going down the stairs. Davy said to me: "Fuck you bitch, you're not welcome in this house" and ran down the stairs.

(R. 20-1, Resp. to Summ. J., Ex. 1b at ¶¶6, 7 (Aff. of H. Anderson).) Davy also verbally abused Jennifer, often calling Jennifer a "cunt", a "whore", a "lazy fucking bitch", and a "stupid bitch."

(R. 174-1, Respondent Aff. at ¶¶39, 41, 44; R. 20-1, Resp. to Summ. J., Ex. 1b at ¶10, Ex. 1c (Aff. of S. Sovsky) at ¶8, Ex. 1d (Aff. of R. Sovsky) at ¶6.) And, on at least one occasion, Davy has told their daughter "Fuck mommy," and has directed her to "[t]ell Mommy she's a cunt."

(R. 174-1, Respondent Aff. at ¶44; R. 20-1, Resp. to Summ. J., Ex. 1c at ¶8, Ex. 1d at ¶8, Ex. 1e (Aff. of Jayson Sovsky) at ¶¶7, 9.)

In late 2000, Davy floated the idea of moving back to Belgium, so that he could attend a free college program. (R. 174-1, Respondent Aff. at ¶8.) Jennifer was reluctant; she had no family there, no friends, no job, and did not speak the language well. (R. 174-1, Respondent Aff. at ¶9.) To encourage Jennifer, Davy promised that, as soon as he completed college in Belgium, the family would move back to Illinois. (R. 174-1, Respondent Aff. at ¶¶8, 10; R. 20-1, Resp. to Summ. J., Ex 1c at ¶14, Ex. 1d at ¶10.) Davy made this promise on several occasions to Jennifer and in the presence of her family, including her mother, father, and brothers. (Id.) On January 24, 2001, Davy, Jennifer, and Kaitlynn moved in with Davy's mother in Laakdal, Belgium. (R. 174-1, Respondent Aff. at ¶11.) Once there, Davy continued to tell Jennifer that they would return to the United States as soon as he was finished with school. (Id.)

After the move to Belgium, Davy continued to beat Jennifer. (Id. at ¶¶13, 14, 16, 23, 25-29.) Davy's mother also joined in the beatings for the supposed reason that Jennifer was an indifferent housekeeper. (Id. at ¶¶17, 30.) Jennifer secretly called the Belgium police several times when Davy beat her, but they said they could do nothing unless she went to a doctor to verify her injuries, which she did not do for fear of increasing the severity of Davy's beatings. (Id. at ¶31.)

Davy also physically abused Kaitlynn. (See, e.g., R. 174-1, Respondent Aff. at ¶¶20, 21, 26.) See also Van De Sande v. Van De Sande, 431 F.3d 567, 569 (7th Cir. 2005) (construing the supplied affidavits to that effect). The abuse began when Kaitlynn started wetting her bed. (R. 174-1, Respondent Aff. at ¶¶20, 21.) Davy would spank her repeatedly, and on one occassion, when Jennifer entered Kaitlynn's bedroom and told Davy to stop beating their daughter, he grabbed Jennifer by the throat and shoved her out of the room. (Id. at ¶26.) And, at least once, Davy delivered a sharp blow to the side of Kaitlynn's head; Davy's mother also has struck Kaitlynn in the head. (Id. at ¶¶22, 37.)

On September 29, 2004, Davy and Jennifer returned to the United States to attend Jennifer's brother's wedding. (Id. at ¶35.) Davy struck Jennifer in the face and choked her several times during their stay. (Id. at ¶36.)

On October 9, 2004, while still in the United States, Jennifer took Kaitlynn and Brandon and their passports to her brother's house. (R. 174-1, Respondent Aff. at ¶38.) While Jennifer and the children were out of the home, Jennifer's father, Raymond, told Davy that Jennifer and the children planned to stay in the United States and therefore would not be returning to Belgium. (Id. at ¶38.) In a later conversation with Jennifer, Davy threatened to kill the children, saying: "If I can't have my kids, I might as well find a gun and kill him." (Id. at ¶40.) He then threatened that he would "kill everybody" if his children did not return with him to Belgium. (R. 20-1, Resp. to Summ. J., Ex. 1e at ¶10.) After telling her father about Davy's threats, Raymond called the police, and an officer escorted Davy from the house. (R. 174-1, Respondent Aff. at ¶41; see also R. 172-1, Aff. of Dep. E. Campbell at ¶¶2, 8 (an affidavit of the responding officer averring that Davy acknowledged making these threats: "While Raymond and Davy were both in my presence, Raymond asked Davy, 'Did you threaten to kill the kids if you don't get them?' Davy replied, 'Yes, I said that.'").) Davy returned to Belgium on approximately October 12, 2004. (Id. at ¶42.)

II. The Current Litigation

Once back in Belgium, Davy filed an application for custody of Kaitlynn and Brandon with the Belgian authorities. (Id.) Pursuant to his application, on October 18, 2004, the President of the Court of First Instance in Turnhout, Belgium, granted Davy relief including an award of exclusive custodial rights over Kaitlynn and Brandon. (R. 1-1, Petition at ¶14.) On October 22, 2004, Davy submitted requests for the return of his children to the Belgian Central Authority with responsibility for implementing the Hague Convention. (Id. at ¶15.) On February 25, 2005, Davy filed the petition initiating the current matter.

On June 16, 2005, the district court granted Davy's Motion for Summary Judgment and ordered that the children be returned to Belgium. (R. 33-3, Mem. Op. and Order.) Jennifer appealed that decision and, on December 7, 2005, the Seventh Circuit reversed and remanded for an evidentiary hearing on the Petition:

[T]he safety of children is paramount. Jennifer presented at the summary judgment stage sufficient evidence of a grave risk of harm to her children, and the adequacy of conditions that would protect the children if they were returned to their father's country is sufficiently in doubt, to necessitate an evidentiary hearing in order to explore these issues fully. The hearing should be held promptly and conducted expeditiously in order to comply with the Convention's goal of expediting the return of abducted children to their country of habitual residence, provided that the return will not expose the children to a grave risk of harm.

Van De Sande, 431 F.3d at 572. On remand, the case was reassigned to this Court pursuant to Circuit Rule 36.

Following remand, the Court delayed the evidentiary hearing at the parties' request. The parties agreed to continue the evidentiary hearing in order to proceed first to mediation before the assigned magistrate judge and an independent mediator specializing in family issues.

Mediation offered short-lived cause for optimism. As a result of the mediation, the parties reached an interim agreement. Consequently, on April 12, 2006, the Court entered an agreed order, providing: (1) that Davy would be allowed to take Kaitlynn and Brandon to Belgium, so long as Davy returned the children to Jennifer's custody in Illinois no later than August 8, 2006; and (2) that while in Belgium Davy would go to the Belgian court that had considered his custody application, advise the Belgian court of the proceedings in the United States, and ask the Belgian court for a continuance until after September 2006, when the hearing on Davy's Petition in this Court was scheduled. (R. 96-1, Order of Apr. 12, 2006.)

Since mid-July 2006, however, Davy has repeatedly informed his counsel and Jennifer that he did not and does not intend to return the children to the United States. (R. 100-1, Motion to Withdraw; R. 163-1, Renewed Motion to Withdraw.)*fn2 Further, in June 2006, Davy appeared before the Belgian court as agreed, but rather than seeking a continuance and advising the court of the proceedings in the United States, Davy instead obtained a court order that further confirmed his sole custody of the children. (R. 174-1, Respondent Aff. at ¶46.)

Notwithstanding Davy's disregard for the Court's order, the parties continued mediation sessions, with Davy participating by telephone from Belgium. (Id. at ¶49.) Throughout the mediation process, Davy allowed Jennifer to have limited contact with the children through webcam visits and telephone calls. (Id. at ¶50.) But shortly after the parties terminated mediation on January 3, 2008, Davy told Jennifer through an instant ...


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