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Thursday, May 2, 2013

Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013) [Poland] [Federal & State Judicial Remedies] [Well Settled]

In Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013)(not selected for publication in the Federal Reporter) Respondent Yashmun Filipczak, the Mother, appealed from the judgment of the United States District Court for the Southern District of New York finding that Poland was the country of habitual residence for the Mother's two minor children and ordering the children's return to Poland. Petitioner Wojciech Filipczak, the Father, brought the case against her under the International Child Abduction Remedies Act (“ICARA”). At trial, the Mother did not contest that she had wrongfully removed the children from Poland, but argued that she qualified for two exceptions to the Hague Convention's repatriation requirement: (i) that the children would face “grave risk” to their well being in Poland, Hague Convention, art. 13(b), and (ii) that the children were “well settled” in the United States, Hague Convention art. 12. In a decision and order dated December 23, 2011, the United States District Court for the Southern District of New York rejected the Mother's contentions and ordered that the children be returned to Poland.

The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.

Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.

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