In Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) on August 21, 2013, Petitioner Fred Jay Skolnick filed a Verified Petition seeking the return of his five minor children to Singapore. Respondent moved to dismiss the Amended Petition for failure to state a claim. Respondent contended that Petitioner has "waived" his right to seek relief under the Hague Convention or alternatively that he "acquiesced" in the retention of the children in the United States by stipulating during the proceedings to the Respondent having temporary physical custody pending the outcome of the action. Respondent's motion was denied.
According to the Amended Verified Petition Petitioner and his wife, Respondent Andrea Wainer, were both American citizens and were married in the United States in November 1999, but never lived here together as a married couple. They had five minor children together ranging in ages from four to twelve years old, all of whom were born in either Hong Kong or Tokyo. In June 2011, while the parties were living in London, Ms. Wainer filed for divorce in the Principal Registry of the Family Division, London, England (the "London Action"). In January 2012, the parties mutually agreed to move to Singapore with their children while the London Action was pending. In May 2013, with the aid of a meditator, the parties reached an agreement for shared custody in which the children would continuously live in the same apartment, and Petitioner and Respondent would alternate between living in this apartment with the children and their own studio apartments in the same building. Petitioner alleged that shortly after reaching this agreement, Respondent unlawfully removed the children from Singapore to the United States. Starting in April 2012 and up until the time of removal on May 31, 2013, Petitioner alleged that the parties and their five children were habitual residents of Singapore within the meaning of the Hague Convention. Petitioner contended that under Singaporean law, he had rights of custody and was actually exercising such rights up until the wrongful removal. On July 10, 2013, Petitioner filed an action in the High Court Republic of Singapore seeking the return of the children. Petitioner filed this action in the United States District Court for the Eastern District of New York, on August 21, 2013, which was transferred to this Court on September 20, 2013.
On October 17, 2013, the parties entered into a stipulation which provided, inter ali, that "the parties shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer, and the children remaining enrolled in Greenwich public schools. "After an initial period of reunification" with the children, Mr. Skolnick was to have "liberal and reasonable access to the Minor Children by phone, fax, e-mail, text message and/or Skype, as well as visitation as to be agreed upon by the parties."
On November 22, 2013, the Court held a hearing on Petitioner's motion for an emergency order for visitation with the children. The parties were able to come to an agreement to retain the services a child psychologist "to facilitate reunification between the children and Mr. Skolnick" starting the next morning with the purpose of enabling him to have "reasonable and liberal access to the children going forward" until Mr.
Skolnick's departure to Singapore on December 1, 2013, and thereafter upon future visits pending the resolution of this action.
The District Court observed that to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Conclusory allegations are not sufficient. .
Ms. Wainer contended that there "is a dearth of factual allegations in the Petition regarding Petitioner's custody rights and the exercise of those rights"to state a plausible claim. Respondent also contended that by signing the Stipulation providing Ms. Wainer with primary physical custody, Petitioner "waived" his right to seek relief under the Hague Convention, or in the alternative, that by doing so, he "acquiesced" in the retention of the children in the United States
The district court observed that to state a claim under the Hague Convention, Petitioner must allege (1) that the children were habitually resident in Singapore and removed to or retained in the United States, (2) that Petitioner had a right of custody under Singaporean law, and (3) that he was actually exercising this right at the time of removal. The Court found that under these standards, the Amended Petition amply alleged a Hague Convention claim. Petitioner alleged that as the natural parent of the children, he had a right of custody under Singaporean law. The Amended Petition further alleged that the parties mutually agreed to relocate to Singapore and establish it as their habitual residence, and up until the children's removal in May 2013, exercised joint physical custody over the children. The Amended Petition also detailed how the parties reached an elaborate agreement for shared custody in Singapore whereby the children would continuously live in the same apartment, and Ms. Wainer and Mr. Skolnick would alternate between the children's apartment and their respective separate studio apartments in the same building. Once the five children were removed from Singapore, the Amended Petition described how Petitioner attempted to pursue legal remedies in Singapore and the United States, and traveled to Connecticut in an attempt to reunite with his children. Accordingly, Petitioner stated a plausible claim for relief under the Hague Convention. See Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir.2013) ("Hofmann's multiple visits to New York as well as his participation in family vacations demonstrated that he was exercising his custodial rights up to the time the divorce proceedings were initiated."); Norden-Powers v. Beveridge, 125 F.Supp.2d 634, 640 (E.D.N.Y.2000).
Respondent argued that by signing the Stipulation, "Petitioner waived his rights under the Hague Convention by stipulating to primary physical custody of the parties' children" with Respondent. Respondent also asserted that by signing the Stipulation, Petitioner "acquiesced" in the retention of the children in the United States. The Court found that Respondent's "waiver" argument was really one of ripeness or jurisdiction. She asserted that "Petitioner does not have a claim for wrongful retention at this time because, pursuant to the parties' agreed upon Stipulation, Ms. Wainer is to have physical custody of the children in Greenwich at least until January 8, 2014. And, there is no express or implied provision in the Stipulation that on January 8, 2014, Ms. Wainer is to return the children to Singapore." Because Respondent was entitled to exercise primary physical custody over the children under the Stipulation, she asserted that Petitioner's Amended Petition alleged no more than an "anticipatory breach of the parties' Stipulation." An Article III court cannot entertain a claim that is not ripe, i .e. one "which is based upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir.1998)
The Court noted that a Hague Convention claim can allege either "wrongful removal or retention," 42 U.S.C. § 11603(f)(2) and, Petitioner amply alleged wrongful removal. This allegation was sufficient to state a justiciable claim for relief. To the extent that Respondent asserted that due to the Stipulation her retention of the children was no longer "wrongful," this assertion went to the affirmative defense of acquiescence Respondent cites two cases purporting to support her jurisdictional argument: Toren v. Toren, 191 F.3d 23, 25 (1st Cir.1999) and Falk v. Sinclair, 692 F.Supp.2d 147 (D.Me.2010) for the proposition that "there can be no wrongful retention until such time as the children are required to be returned to Singapore" under the terms of the Stipulation. As an initial matter, the Court held that whether events subsequent to the filing of the Amended Petition defeat Petitioner's claim speak to the affirmative defense of acquiescence. Respondent's invocation of this affirmative defense is not properly considered on Respondent's motion to dismiss. Affirmative defenses may only "be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). The Stipulation upon which Respondent relied was not signed until after Petitioner filed the Amended Petition. The resolution of this defense on a motion to dismiss is especially inappropriate here given that "even where the grounds for one of [the] 'narrow' exceptions have been established, the district court is not necessarily bound to allow the child to remain with the abducting parent," and must exercise its discretion in light of the entire record developed at a hearing on the merits to consider whether such an order would further the aims of the Convention. Blondin, 189 F.3d at 246 n.4.
On the merits, Respondent's argument failed as well. As Respondent acknowledged "acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070. The showing required is "stringent." Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir.2005). The Stipulation was drafted to modify the First Superior Court Ex Parte Protective Order, which was entered without Petitioner's consent and prevented him from exercising custody or visitation rights. Rather than evincing Mr. Skolnick's intent to renounce his rights, the Stipulation expanded his rights in contrast to the limitations imposed by the First Superior Court Ex Parte Protective Order.
The parties agreed that they "shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer. The Stipulation also provided that it was entered into "without prejudice to either party's claims" before this Court, "the action pending in London or the Singapore Action including, but not limited to, any claims regarding custody of or visitation with the Minor Children." Another provision appeared to not only undermine Respondent's argument, but also to prohibit her from even advancing it: "No adverse inference shall be drawn from the continuation of the Conditions of Protection pursuant to this Stipulation or the underlying Order, and neither party nor its attorneys in any jurisdiction shall request any tribunal to do so." Far from "a convincing written renunciation of rights," Friedrich, 78 F.3d at 1070, by its own terms the Stipulation evinced the parties' intent to reach a temporary agreement for custody, and for Mr. Skolnick to gain, not renounce, his access to the children pending the outcome of this case. The parties' Stipulation clearly evinced their intent only to preserve the status quo pending the resolution of this action. Thus, this provisional agreement does not meet the stringent standards for a finding of acquiescence.