In Gwiazdowski v. Gwiazdowska, 2015 WL 1514436 (E.D.N.Y.) on February 11, 2014, Cezary Gwiazdowski ("Cezary") brought a petition pursuant to the Hague Convention for the return to Poland of his two children, K.G. and M.G., who resided in the United States with Anetta Gwiazdowska ("Anetta"), his wife and the biological mother of the two children, since April 2011.
The District Court found that the petitioner made out a prima facie case for return and addressed the Article 12 defense in its opinion. It observed that under Article 12 of the Hague Convention, if a Hague Convention petition is filed more than one year after the wrongful removal, the Court "shall ... order the return of the child, unless it is demonstrated that the child is now settled in its new environment." The respondent bears the burden of establishing this defense by a preponderance of the evidence. 22 U.S.C. §9003(e)(2)(B). Though the Convention does not define the term "settled," the Second Circuit has stated that the term "should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012).
The Court held a hearing, and with consent from both parties, the Court interviewed K.G. (age 10) and M.G. (age 8) in camera outside of the presence of the parties and their respective counsel. It observed that this procedure "is consistent with those adopted by district courts in Hague Convention cases." Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 n. 1 (E.D.N.Y.2010).
The district court found that in July 2003, the couple married in a Polish Catholic church in Brooklyn, New York, a choice they made so that Anetta's mother, who lived in Maspeth, New York, could attend the wedding. The couple returned to Elblag, Poland soon afterwards and had two sons, K.G., born in 2004, and M.G., born in 2008. On April 11, 2011, Anetta left Poland with the children and moved into her mother's home in Maspeth. Anetta did not inform Cezary that she was taking the children or obtain his consent to do so. For the first several months following her departure, Cezary held out hope that she would return to Poland and resume their life together, though the couple spoke infrequently on the phone. However, in early 2012, Anetta informed Cezary that she did not intend to return to Poland and wanted to file for divorce. Cezary traveled to New York in March 2012 to speak to her and the children in person. When Anetta refused to meet with him or let him speak with the children, Cezary consulted a lawyer and filed a custody petition in Family Court. The Family Court proceedings apparently languished until late 2013, when Anetta filed her own custody petition in Family Court.. During the pendency of the Family Court proceedings, Cezary was permitted to speak with Anetta and the children three times a week over Skype, and was permitted to occasionally visit the children in the United States. Since March 2012, he visited the children approximately five times a year. On June 10, 2014, the Department of State sent a letter to the Family Court informing the court that Cezary had filed an application with the Department of State for the return of the children. The letter further informed the Family Court that, under Article 16 of the Hague Convention, the court should defer decision on the merits of rights of custody until Cezary's Hague Convention petition was
adjudicated. See Hague Convention art. 16 ("After receiving notice of a wrongful
removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention...."). Despite this letter, on December 17, 2014, the Family Court entered a final order in Anetta's custody proceeding. The order granted legal and physical custody of the children to Anetta, and granted Cezary visitation with the children on a schedule set by the Family Court, subject to the condition that "[Cezary] must not remove the children outside and beyond the United States" and that "[t]he children's passports are to remain in the possession of [Anetta]." In February 2015, Cezary traveled to the United States and went on vacation with the children to the Pocono Mountains in Pennsylvania. Cezary plans to return to the United States in April 2015 for M.G.'s First Holy Communion. When he is in Poland, Cezary speaks with his children on Skype every Monday, Wednesday, and Friday, though he complained that "maybe 30 percent of [the time] they are not available.”
The Court concluded that Anetta's removal of the children in April 2011 was wrongful under the Hague Convention. The children were habitually resident in Poland at the time of the removal. Cezary was exercising his custody rights at that time, since Cezary and Anetta lived together and had joint custody of the children at the time of removal. Anetta's removal of the children appeared to have been in breach of Cezary's custody rights under Polish law. See In re Skrodzki, 642 F.Supp.2d 108, 115 (E.D.N.Y.2007).
However, the Court found that Anetta established that the children are now settled in the United States. The petition was filed almost three years after Anetta's removal of the children from Poland, and the "settled" defense was available to Anetta. See Hague Convention, art. 12. It observed that to determine whether a child a settled, a district court must consider a variety of factors, including:(1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lozano, 697 F.3d at 57.
The Court addressed these factors in turn. If noted that the stability of a child's residence "plays a significant role in the 'settled' inquiry." In re D.T.J., 956 F.Supp.2d 523, 535 (S.D.N.Y.2013). K.G. and M.G. lived at Anetta's mother's house since moving to the United States and felt comfortable in their home environment. The Court concluded that the children had a stable and happy home in New York. Cezary acknowledged that the children had a group of friends in school here, a fact confirmed by K.G. and M.G. during the in camera interview. By contrast, the children did not appear to have significant attachments to Poland. Further, while the children had several relatives who lived in Poland, Anetta testified that most of their family members live eight hours from Elblag by train and Cezary did not dispute this fact. It was therefore unclear how much contact the children would have with these family members even if they lived with Cezary in Elblag. K.G. and M.G. attended Saint Stanislaus Kostka School in Maspeth, New York, since August 2011. The children's school records demonstrated that they were in regular attendance and received good grades. In addition, both parents acknowledged that K.G. and M.G. regularly attended church in the United States. K.G. received his First Holy Communion in 2014, while M.G. was scheduled to receive his First Holy Communion in April. K.G., who was 10 years old, and M.G., who was 8, were old enough to form meaningful attachments to their new environment. See In re Robinson, 983 F.Supp. 1339, 1345 (D.Colo.1997) (concluding that 10-year-old and 6-year-old "are old enough to allow meaningful connections to the new environment to evolve ...[while] children of a very young age are not"). Anetta was not currently employed in the United States but was attending university and studying to receive a medical license in the United States. It was unclear whether Anetta would be able to find employment once she completed her studies or how much she would earn if she does. However, Anetta testified that her mother and stepfather, who collectively earned approximately $200,000 a year, significantly contributed towards the children's expenses. As the Second Circuit has noted, "[t]he importance of a child's immigration status [for the 'settled' defense] will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits." Lozano, 697 F.3d at 57. Anetta and the children were currently residing in the United States on F1 non-immigrant visas, which allowed them to remain in the United States as long as Anetta remained in school. The fact that the children were here legally was a positive factor in the "settled" analysis. See Demaj v. Sakaj, No. 3:09-CV-255, 2013 WL 1131418, at *23 (D.Conn. Mar. 18, 2013) (concluding that mother and children's approval for nonimmigrant U visas supported the mother's "settled" defense). However, the Court was unclear whether Anetta would be able to obtain legal residence in the United States when her student visa ends, and Anetta presented no evidence of how she intended to pursue legal status upon completion of her studies. After weighing all of these factors, the Court concluded that Anetta met her burden of demonstrating by a preponderance of the evidence that the children were settled in their current environment. The Court found that the elements of the Article 12 defense had been met.
The Court also considered whether it should exercise its discretion to repatriate K.G. and M.G. notwithstanding that Anetta has established an affirmative defense under the Hague Convention. See Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention."). Since there was no evidence that Anetta's relocation to the United States was motivated by a desire to remove the children to a jurisdiction more favorable to her custody claims, the Court saw no reason to do so. See In re D.T.J., 956 F.Supp.2d at 549 (declining to exercise discretion to remove children, notwithstanding affirmative defense, because there was no evidence that mother removed children to obtain a more favorable custody ruling). Cezary's petition was denied.