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Monday, December 28, 2015

Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015)[Petition denied] [Greece] [Consent] [Age and Maturity] [Video testimony] [in camera]

In Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015) Petitioner Nikolaos Adamis filed a verified petition, for the return of his minor son, D.A., against D.A.'s mother,  who was living with D.A. in Douglaston, New York at the time. Because Adamis was in Greece for the entire proceeding, he testified and participated in the proceeding via video conference, as did two other witnesses located in Greece. The Court interviewed D.A. in camera, but on record and in the presence of both parties' counsel, to determine his wishes regarding his place of residence. At the conclusion of the trial, the Court denied the petition for return.

D.A. was the son of Petitioner and Respondent. At the time of the trial, D.A. was 12 years old. Petitioner was a U.S. and Greek citizen who was living in the United States in the 1990s. Respondent was a Canadian citizen of Greek heritage who moved to New York with her family in 1968. On September 2, 2001, Petitioner and Respondent wed in Greece.  After the events of 9/11, which occurred only days later, Petitioner decided that they would relocate, with Toula, he child from a previous marriage, to Greece. Petitioner and Respondent moved to Greece for a "better lifestyle." D.A. was born in Greece in October 2002, and lived there continuously until he was brought to the United States by his mother in December 2013. Discussions about moving to the United States began when D.A. was in fourth grade, prompted by the difficulties he was facing in school.  After D.A. told his mother he could no longer handle his school situation, she told Petitioner that they had to move to the United States for D.A.'s sake. Petitioner responded, Okay, okay, whatever makes you happy."  It took time, however, to raise the money to move to the United States. Thereafter, D.A.'s mother repeatedly raised the topic of moving with Petitioner, and he told her several times that they could go.  In the summer of 2013, D.A.'s mother began planning the move in earnest. She told D.A. that they were going to move, and began packing their household items and personal belongings to be shipped to the United States. D.A. spoke to his father directly about the move, saying that there were things that he (D.A.) could not do in Greece and that he wanted to move. D.A.'s father simply responded, "okay, okay." Many people in Porto Rafti knew about the move, including D.A.'s school, his classmates and their families, the family's neighbors, and Respondent's friends and co-workers. In fact, her co-workers performed a farewell song for D.A.'s family at the annual Thanksgiving dinner shortly before they moved, and D.A.'s school class also held a farewell party for him. On December 13, 2013, Respondent and D.A. left Porto Rafti to travel to the United States. By that time, the house was almost empty, except for furniture that did not belong to the family, Petitioner's personal belongings, and unwanted personal items D.A. and Respondent left behind. Petitioner was at the Porto Rafti home that day, having come home the night before so that he could say goodbye. After Respondent and D.A. left for the United States in December 2013, Petitioner changed his mind about letting D.A. live in the United States. 14 On January 6, 2013, when Respondent called Petitioner, he asked her when they were returning to Greece. Respondent told Petitioner that they were not returning to Greece and reminded him that he knew that they were moving, that they had spoken about the move many times, and that he had seen them packing their belongings. On January 22, 2014, Respondent went to the Greek Ministry of Justice, and filed a complaint pursuant to Article 13 of the Hague Convention, seeking the return of D.A. to Greece. 

During the  trial, the Court interviewed D.A. in the presence of Petitioner's and Respondent's counsel. The Court's assessment of D.A. was that he was an unusually poised and mature adolescent, who was comfortable with adults, and engaged readily and openly with the Court. The Court found D.A. perceptive, bright, forthright, rational, friendly, credible, and serious about his education. His answers and demeanor evinced clarity about his wishes and the reasons for them, and complete awareness of the consequences of the court proceeding. D.A. wanted to "stay in America."  He believed that "America's definitely better to live all year around[]" because his "whole family is here…. There's a better school here, and I just like it overall here." Since arriving in the United States, D.A. had been living in an apartment with his mother and sister in a building where his mother's aunt and uncle also live.  D.A. and his sister each had their own bedroom.  D.A. was very close to his sister, Toula, and would not want to return to Greece if she remained in the United States, which was her current plan.

The parties stipulated to Petitioner's prima facie case for wrongful removal. They agreed that (1) D.A.'s habitual residence at the time of his removal was Greece, and (2) Petitioner had custodial rights pursuant to Greek law. It found that Petitioner consented to D.A. moving with his mother and sister from Greece to the United States on December 13, 2013. This evidence included the testimony of Respondent, Toula and D.A., as corroborated by December 2013 audio recording of Petitioner stating that he had given permission for them to move. The Court found that Petitioner consented to Respondent's removal of D.A. from Greece on December 13, 2013, and his retention in the United States thereafter. See In re Kim, 404 F. Supp. 2d at 520-21 (determining, based on the credibility of the witnesses, that the respondent established by a preponderance of the evidence that the petitioner consented to the child's move).

The Court found that the age and maturity exception provided another basis for refusing to order D.A.'s return to Greece and that D.A. was sufficiently mature to object to his return and has credibly done so. The Court's finding was based largely on its interview of D.A. The Court found D.A. to be an exceptionally bright, thoughtful, sociable and well-adjusted adolescent. The Court also found that D.A.'s reasons for wanting to remain in the United States were rational and well-considered: (1) superior educational opportunities, especially in D.A.'s areas of interest, i.e., science and computer science; (2) the chance to participate in a wide range of extracurricular activities; (3) an abundance of relatives with whom he is very close; and (4) more and better friendships. The sincerity and rationality of D.A.'s motivations and desires was corroborated by the testimony of D.A.'s family members, who credibly testified about how much fuller and happier D.A.'s life has become since moving to the United States. 

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