In Radu v Toader, 2011 WL 3418368 (E.D.N.Y.) Iulian Cristian Radu ("petitioner") brought an action against Petruta Toader ("respondent") for the return of their child L.R. to Romania pursuant to the Hague Convention. Petitioner was a Romanian citizen, and currently lived in Romania. Respondent and L.R. were also Romanian citizens, but currently resided in Forest Hills, New York. The petition was filed on April 6, 2011. Petitioner and respondent were born in Romania and were Romanian citizens. In January 2003, the two married in Romania. Two years later, on January 13, 2005, L.R. was born in Romania. Petitioner, respondent, and L.R. lived together in respondent's parent's home in Bucharest, Romania until August 2009. In May 2009, respondent took a business trip to New York for approximately five days. Upon her return, she demanded that the family move to New York. When petitioner refused, respondent filed for divorce at the end of May 2009. Petitioner contended that after respondent filed for divorce, she refused to let him see his child. On October 2, 2009, a Bucharest court issued a Divorce Decree granting respondent sole custody of the child and granting petitioner visitation rights, for one year, for two weekends each month, two weeks during the summer, one week during winter vacation, and one week during the Easter holiday. The Divorce Decree provided that, pursuant to Romanian Family Code and Law no. 272/2004, the noncustodial parent "shall retain the right to a personal relationship with the child," have input in the "upbringing and education of the child," and maintain a "close emotional relationship" with the child. The Decree also required that petitioner pay 300 Lei each month in alimony, which he continued to do since the divorce. The court defines the custody determination as a "final and irrevocable court decision." The Divorce Decree stated that the dissolution of the marriage was by "shared fault." Both parties were represented by counsel during the signing of the Decree and there was no other evidence to indicate that there was any illegality in its construction. The district court noted that petitioners visitation rights did not amount to custodial rights as required for the return of the child to Romania. Between the divorce in October 2009 and L.R.'s removal from Romania in September 2010, petitioner exercised his visitation rights and provided financial and emotional support to the child. From approximately December 2009 to June 2010, respondent permitted petitioner to have additional visits with the child beyond his decreed visitation schedule. On September 17, 2010, respondent and the child moved to the United States without notifying petitioner. Respondent noted that she did not tell petitioner that she intended to change the child's domicile because she was "unsure how her relationship with another man-now her husband-would turn out." Respondent also maintained that her Romanian attorney told her that, pursuant to law 248/500, respondent did not need petitioner's permission to change the child's domicile. On September 25, 2010, petitioner went to pick up his child from respondent's home for his scheduled visit and was told by respondent's parents that respondent and the child had resettled in the United States. On September 29, 2010, petitioner received a letter from respondent's attorney, which provided him with respondent and L.R.'s new
address and telephone number in Forest Hills, New York. Petitioner has since had telecommunications with his child via both phone calls and video conference.
On February 25, 2011, petitioner filed a petition in the Bucharest Court seeking a decision that respondent's removal and retention of L.R. outside of Romania was illegal. On May 5, 2011, the Bucharest Court dismissed the action, finding that petitioner did not have standing to bring the suit and was without remedy of law.
The District Court observed that in order to raise a prima facie case, a petitioner had to prove by a preponderance of the evidence that: "(1) the child was habitually resident in one State and has been ... retained in a different State; (2) the ... retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights [or would have exercised those rights] at the time of the ... retention." Gitter v Gitter, 396 F.3d at 130-131. If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must "order the return of the child forthwith," unless the respondent is able to raise an affirmative defense. Hague Convention art. 12.
The District Court found that petitioner failed to establish a prima facie case of wrongful removal and retention by a preponderance of the evidence. The parties did not dispute that L.R. was a habitual resident of Romania at the time of his removal. The pinnacle issue was whether respondent's unilateral decision to change the child's domicile was in breach of petitioner's rights of custody. Both sides cited to Abbott as the seminal case in determining whether petitioner has a ne exeat right-the right of a parent to require his consent before a child is taken out of the country. In Abbott, the Court held that a parent's ne exeat right qualifies as right of a custody under the Hague Convention. See 130 S.Ct. at 1990. Therein, the father and mother separated and a Chilean court awarded visitation rights to the father. Id. at 1988. The Court found that while visitation rights or "rights of access" alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists. Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.
The district court observed that the final and irrevocable Divorce Decree only awarded petitioner visitation rights, not custodial rights. The Court rejected petitioners argument that his visitation rights, in conjunction with four Romanian laws, amounted to a ne exeat right. The first law to which petitioner cited was the Romanian Law on the Protection and Promotion of the Rights of the Child, Law 272/2004, which concerns a child's temporary travel abroad. That law provides, in part, that "the child[ ]'s travel in the country or abroad may only be done when both parents have been notified and have agreed; any misunderstanding between the parents concerning the expression of this agreement is ruled upon by the court of law." Here, respondent did not notify petitioner of L.R.'s travel to the United States; however, any disagreement arising from the child's travel outside of Romania had already been ruled upon by "the court of law"--that is, the irrevocable and final decision rendered in the Divorce Decree, which granted sole custody to respondent. Although petitioner argued that his visitation rights alone created a ne exeat right, this argument was misguided. See Abbott, 130 S.Ct. at 1988-89 (finding that "direct and regular visitation rights," are recognized as "rights of access," but that these rights alone do not offer a return remedy under the Convention). Upon reading Law 272/2004 in full, the district court observed that the law clearly anticipated that a final and irrevocable custody determination would modify and limit the very parental rights which Law 272/2004 espoused. Article 16, for example, provides that the "court of law, considering the best interests of the child as a priority, can limit the exercise of the [noncustodial parent's right to maintain direct contact]." The Bucharest court that issued the parties' Divorce Decree did just that, and negated petitioner's custodial rights by awarding respondent sole custody of the child. Thus, petitioner failed to establish that the Divorce Decree and law 272/2004 created a ne exeat right. The second law to which petitioner cited was the Status of the Free Movement of the Romanian Citizens Abroad Law 248/2005, ("248/2005"), which states that a minor Romanian citizen may leave the country when accompanied by one of his parents "without the need for the other parent's affidavit, only if the accompanying parent presents proof that she has custody of the minor based on a final and irrevocable court decree." This law clarified that because respondent has a final and irrevocable Divorce Decree vesting her with sole custody of L.R., she could temporarily remove L.R. from Romania without petitioner's permission. The Court found that the Divorce Decree superseded the prior Romanian law requiring both parents' consent. The Romanian Consulate affirmed this finding in a letter to this Court, noting that "[i]n accordance with the Romanian Law no. 248/2005, as amended, the parent who has the custody of the child is entitled to request the issuance of a Romanian passport/travel document for the said child and to approve any trip abroad, without the other parent's consent." Accordingly, Law 248/2005 failed to confer upon petitioner a ne exeat right.
The Court concluded that petitioner had not established that he had any ne exeat rights as to L.R. under the Divorce Decree or Romanian law. The Romanian court rendered a final and irrevocable custodial determination in favor of respondent, did not award any custodial rights to petitioner, and was silent as to petitioner's ne exeat rights. This Decree, under Romanian law, then superseded any ne exeat right that petitioner may have had. Accordingly, petitioner failed to establish that respondent's retention of L.R. was in violation of his custodial rights.. Because the Divorce Decree did not afford petitioner with custodial rights, and Romanian law does not grant a ne exeat right in the face of the superseding Divorce Decree, petitioner had no custodial rights to exercise at the time of L.R.'s removal. Accordingly, petitioner failed to meet the third element of his prima facie case. The petition was therefore dismissed.
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