Parent and child – Court refuses to order children returned to father in Paraguay

Although mother is wrongfully retaining the parties’ two minor children in the United States, she has established, by clear and convincing evidence, that there is a grave risk that their return to Paraguay would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.

Background

Maik Evert Ens Loblein filed suit under the Hague Convention and International Child Abduction Remedies Act, alleging that his wife, Roxana Andrea Alcaraz de Ens, has been wrongfully retaining their two minor children, S.I.E.A. and M.A.E.A., in the United States since Feb. 27, 2025. The court held a bench trial to determine whether Ms. Alcaraz is wrongfully retaining S.I.E.A. and M.A.E.A. in the United States and, if so, whether any exception to ordering their return applies.

Risk

Although Ms. Alcaraz is wrongfully retaining the parties’ two minor children in the United States, she has established, by clear and convincing evidence, that there is a grave risk that the return of S.I.E.A. and M.A.E.A. to Paraguay would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.

Courts have found that “[s]ignificant physical and verbal abuse of a spouse and child can . . . establish a grave risk.” “Courts have [also] found grave risk based on domestic abuse of the spouse in the presence of the children, even without abuse directed at the children themselves.”

Here, here is ample evidence in the record not only that Mr. Ens Loblein physically and verbally abused Ms. Alcaraz, but also that this abuse occurred in front of the children. Second, the record supports a finding that Mr. Ens Loblein physically abused both S.I.E.A. and M.A.E.A.

Taken as a whole, the record supports the finding that Mr. Ens Loblein is a person inclined to violent behavior and that, for a course of years, he has engaged in that inclination, and, in so doing, he has been abusive of Ms. Alcaraz in the presence of the children and of the children as well. There is no basis to support any inference that the inclination to violence and the willingness to exercise that inclination has abated.

Third, Mr. Ens Loblein’s sexualized behavior around the children gives great cause for concern as to the psychological wellbeing of the children if they were returned to Paraguay. The evidence of sexually inappropriate behavior by Mr. Ens Loblein includes the nude photograph of Mr. Ens Loblein holding his erect penis proximate to M.A.E.A., the testimony from Ms. Alcaraz that Mr. Ens Loblein masturbated while in the same bed as Ms. Alcaraz and his two children and Mr. Ens Loblein’s habitual masturbation with audible pornography playing within earshot of the children.

Paraguay

Having found that there is a grave risk that return of S.I.E.A. and M.A.E.A. to Paraguay would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation, the court may, in the exercise of its discretion under the Convention, consider whether any ameliorative measures are sufficient to mitigate the risk of grave danger so as to justify ordering return of the children, notwithstanding the finding of grave risk.

However, the question remains as to which party bears the burden of proving to the court that any considered ameliorative measures are sufficient. The court concludes that petitioner, as the party opposing the grave risk defense and seeking return of the children, notwithstanding that finding, is far better situated to bear the burden of demonstrating that the identified grave risk can, in fact, be sufficiently mitigated through ameliorative measures.

In this case, even assuming, for argument’s sake only, that the courts of Paraguay are both capable of issuing protective orders and willing to do so in this case, the court is not persuaded that such measures would be sufficiently effective or reliable to mitigate the grave risk previously identified.

Petitioner’s petition denied.

Loblein v. Alcaraz, Case No. 3:25-cv-737, May 29, 2026. EDVA at Richmond (Payne). VLW 026-3-235. 58 pp.

Full-Text Opinion
VLW 026-3-235