Matter of MG v WZ, --- N.Y.S.2d ----, 2014 WL 5026267 (N.Y.Fam.Ct.),[Dominican Republic] [ Habitual Residence}

In Matter of MG v WZ, --- N.Y.S.2d ----, 2014 WL 5026267 (N.Y.Fam.Ct.), 2014 N.Y. Slip Op. 24296, the Family Court granted the motion of Respondent  for an order reopening an  Order of Custody on Default and allowing him to proceed on his petition for return of the Child to the Dominican Republic pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 42 United States Code § 11601, et seq. Upon Respondent's application, the Court permitted Respondent to testify and
participate in the hearing via video hook-up from the Dominican Republic. The Court denied the petition for return. It found that the parties started residing together in 2004 in the Dominican Republic and Petitioner had a three year old non-subject son, A. The Child was born in March, 2004. In September, 2004, Petitioner immigrated to the United States where she was now a legal resident, leaving the Child and A in the Paternal Grandmother's care. In the beginning of 2006, the parties ended their relationship and shortly thereafter, Petitioner returned to the Dominican Republic for three weeks to a month and stayed with the maternal great grandmother. While Petitioner was in the Dominican Republic in 2006, the Paternal Grandmother petitioned for and was granted guardianship of the Child. Petitioner consented to the Paternal Grandmother having guardianship of the Child but Respondent did not consent.  In May, 2010 Petitioner traveled to the Dominican Republic and returned to the United States with the Child. Petitioner testified that she needed Respondent's
permission in order to leave the Dominican Republic with the Child and Respondent gave his written consent for the Child to travel to the United States. The night before Petitioner left the Dominican Republic with the Child, she and Respondent agreed not to make a final decision on whether the Child would remain in the United States rather than returning to the Dominican Republic. Instead the agreement was that they would wait to see if the Child obtained his permanent residency and whether he was adjusting to and liked life in the United States.  The Child has been living in New York with Petitioner and A since May, 2010, and obtained his permanent residency status in October, 2010. The Child had not been back to the Dominican Republic since he left in May, 2010.  The Child had been enrolled in P.S. 227 in the Bronx since 2010 where he ha been consistently receiving high grades. The Child has been enrolled in a community based baseball league. The Child also enjoys playing basketball and will be enrolled in a community based baseball league. English is now the Child's dominant language although Petitioner and the Child more often communicate in Spanish. The Child has many school friends, and enjoys watching cartoons in
English.  Petitioner worked as a cashier and receives food stamps and medicaid for herself and the children. Petitioner's mother (the Child's maternal grandmother) lives five blocks from Petitioner and the Child with two of the Child's uncles and cousins. The Child has an aunt who has two children who live in the Bronx and another married aunt who has three children. All of these family members are on Petitioner's side of the family and live in the Bronx. The Child spends a great
deal of time with his extended family.

The Family Court observed that where proceedings for return of a child have been commenced after the expiration of the period of one year [from the date of wrongful removal or retention], the court shall [ ] order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Lozano v. Alvarez, 134 S Ct 1224, 1229 (2014) (quoting Article 12 of the Hague Convention). The "abducting parent" must establish that the exception to the return applies by a preponderance of the evidence. Id. Thus, the one year period is not a statute of
limitations. It also observed that courts apply a two-part test to determine a child's country of habitual residence. “First, the court should inquire into the shared intent of [the parents] at the  latest time that their intent was shared. In making this determination the court  should look, as always in determining intent, at actions as well as  declarations. Normally the shared intent of the parents should control the  habitual residence of the child. Second, the court should inquire whether the  evidence unequivocally points to the conclusion that the child has acclimatized
 to the new location and thus has acquired a new habitual residence,  notwithstanding any conflict with the parents' latest shared intent.  Hofmann v. Sender, 716 F3d at 291-92, quoting  Gitter v. Gitter, 396 F3d at 34. The Court found that the  the habitual residence of the Child was the United States. Initially, the parties agreed that Petitioner would precede the Child to the United States and
that Respondent would follow by means of marrying a United States citizen who would then petition for he and the Child to come to the United States. Respondent eventually did marry a United States citizen who petitioned for Respondent to immigrate to the United States but according to Respondent that petition was never granted and in 2012 he and his wife divorced.   Meanwhile, Petitioner grew frustrated with Respondent's lack of progress with his plans for immigrating to the United States via marriage to a United States citizen and initiated the process to petition for the Child to join her in the United States. While Respondent was initially upset that Petitioner filed a petition to have the Child join her in the United States, he gave his written, unqualified consent for Petitioner to travel with the Child to the United States on May 20, 2010. However, the night before Petitioner left the Dominican Republic with the Child in May, 2010, Respondent's unqualified or unconditional consent became conditional when the parties agreed that they would make a final
determination on the Child's residency based on whether the Child obtained his permanent residency and whether he was adjusting to and liked life in the United States. Thus, the last time the parties shared their intent for the Child's place of residence, they conditionally agreed that it would be the United States. The condition on the Child residing in the United States was that he would have to be granted permanent residency and he would have to be adjusting to and liking his
life in the United States. See  Abbott v. Abbott, 560 U.S. at 11;  Hoffmann v. Sender, 716 F3d at 293.  The conditions placed on whether the Child would permanently reside in the United States have been met. The Child obtained his permanent residency status in the United States and he has fully adjusted to and enjoys his life in the United States. The Court found that the Child had fully adjusted to and enjoys his life in the United States because he consistently receives high grades in school, plays community based league sports, speaks predominantly English, and lives with his half brother A and has many relatives within close proximity with whom he spends a great deal of time. Consequently, the Child's habitual residence is the United States since the last time the parties' intent was shared, their shared intent was for the Child to reside in the United States upon his obtaining that which he now has obtained, permanent residency and a settled, enjoyable life in the United States.  Hoffmann v. Sender, 716 F3d at 293.

The Family Court pointed out that where proceedings for return of a child have been commenced after the expiration of the period of one year from the date of wrongful removal or retention, the court shall order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Lozano v. Alvarez, 134 S Ct 1224, 1229 (2014) (quoting Article 12 of the Hague Convention). The "abducting parent" must establish that the exception to the return applies by a preponderance of the evidence. Thus, the one year period is not a statute of
limitations. The Family Court held that even if Respondent had established a prima facie case for return to the Dominican Republic it  would not order the Child's return to the Dominican Republic because more than a year had passed since Petitioner "retained" the Child in the United States and the child was now settled in his new environment. See Taveras v. Morales, 2014 U.S. Dist Lexis 67892;  2014 WL 2038318 (SDNY, August 26, 2014); Jakubik v. Schmirer, 956 F Supp 2d 523 (SDNY 2013).