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Sunday, July 29, 2012

Ozgul v. Ozgul, Not Reported in F.Supp.2d, 2010 WL 3981238 (D.Colo.) [Germany] [Habitual Residence]

In Ozgul v. Ozgul, Not Reported in F.Supp.2d, 2010 WL 3981238 (D.Colo.) Petitioner Mustafa Ozgul brought an action pursuant to the International Child Abduction Remedies Act ("ICARA") seeking an order requiring Respondent to return their four-year-old child to Germany. Petitioner Mustafa Ozgul, a Turkish citizen and permanent German resident, and Respondent Jennifer Arlene Ozgul, a dual citizen of the United States and Germany, were married on October 23, 2006, in Colorado. Their son, Kaan Mete Malik Ozgul, was born on December 6, 2006, in Colorado Springs. In May 2007, the Ozguls moved to Neumarkt, Bavaria, Germany, and resided there until Respondent returned to Colorado, with Kaan, in December of 2009.

Respondent initiated divorce and custody proceedings in El Paso County in Colorado Springs in April of 2010.FN2 Petitioner responded by filing under the Treaty for Kaan's return through the German and American Central Authorities. There were there are no existing custody orders or agreements between the parties, and no proceedings other than these pending in any other court or tribunal. Since there was no formal custody order or agreement between the parties the rights and responsibilities to make legal decisions for the child were presumed to be shared in this case. Petitioner contended he exercised this right in Germany by allowing Kaan to visit the United States with his mother and that Respondent violated it by remaining in the United States longer than they had agreed.

The District Court found that Kaan child lived in the United States for the first six months of his life. He moved with his parents to Germany at that time, and lived there for two and a half years. He resided in the United States since his mother decided to take him from Germany ten months ago. The determinative factor in deciding whether Germany remained Kaan's habitual residence was the intention of the parties when they left the United States and moved to Germany. If they intended to create a home there permanently or for an indefinite period of time, Germany was the child's habitual residence. See In re Morris, 55 F.Supp.2d 1156, 1161 (D.Colo.1999) (Babcock, J.) ("Where the duration of a stay in a foreign country is intended to be indefinite, the habitual residence of a child is usually in that foreign country"). If, however, they manifested a different intent, by leaving possessions behind or otherwise evincing an intent to return to the United States after a short stint in Germany, the United States may still be the child's habitual residence. The Court found that the parties intended to create their home in Germany when they left when Kaan was six months old, and intended to remain there indefinitely. Kaan lived in Germany for most of his young life, where his parents leased an apartment, and where his father was and remained employed. Respondent was not employed outside the home in Germany, and was not currently employed in the United States. There was no intent to change that residence when Respondent left for the United States ten months earlier, and Respondent's refusal voluntarily to return him to Germany was in contravention of his father's equal custodial rights. In this regard, Respondent's removal of the child was per se wrongful.

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