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.
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