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Saturday, December 24, 2016

Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016)[Czec Republic] [Habitual Residence] [Petition granted]

          In Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016) the United States Magistrate Judge recommended that the fathers Petition for an order directing the return of his minor child, L.N.R., to the Czech Republic be granted. Petitioner was a citizen of the Czech Republic. He and a law partner had a law firm in Prague. Respondent, Veronika Marcoski was born in the Czech Republic and resided there until age fourteen.when she moved to Redington Beach, Florida.  Respondent passed the Florida Bar exam in 2010 and was later admitted to the Florida Bar in 2012.  After Respondent met petitioner Respondent began spending significant time in the Czech Republic. In April 2014, Petitioner and Respondent jointly purchased a residence with a right of first refusal in the event either wanted to sell their ownership share. On July 14, 2015, L.N.R. was born in Miami, Florida. After  L.N.R.’s birth in July 2015 through January 2016, Petitioner and Respondent were in a committed relationship with a shared intent for the foreseeable future to live with L.N.R in the Czech Republic. Respondent resided at times in the Czech Republic from 2012 through August 2014. The Magistrate Judge found that Petitioner’s case was established by a preponderance of the evidence. He found that Respondent’s expressed desire to give birth to L.N.R. in the United States, and later pursuit of United States citizenship for L.N.R., were only reflective of Respondent’s desire for L.N.R. to have dual citizenship, like her, so that L.N.R. would be able to avail himself in the future of the benefits that result from the dual citizenship. He did not find that Respondent’s desire to give birth in Miami and a Declaration of Intent to become a citizen demonstrated an intent by Respondent to reside in the United States with L.N.R. He found that after L.N.R.’s birth, Petitioner, Respondent, and L.N.R. resided together as a family, and, more significantly, Petitioner and Respondent had, at that time, a mutual settled intent to reside as a family in the Czech Republic.  Petitioner and Respondent were not married, and, from L.N.R.’s birth in July 2015 to the eventual end of their relationship in January 2016, there were signs that Petitioner and Respondent’s relationship was deteriorating. However, Petitioner demonstrated, by a preponderance of the evidence, that at least up to L.N.R.’s first Christmas in 2015, Petitioner and Respondent had a mutual settled intent to reside as a family with L.N.R. in the Czech Republic. See Delvoye, 329 F.3d at 333 (stating “the mere fact that conflict has developed between the parents does not ipso facto disestablish a child’s habitual residence, once it has come into existence”). The Magistrate concluded that L.N.R.’s habitual residence was in the Czech Republic; that Petitioner established a prima facie case of wrongful removal; and that no defenses to return had been established. 

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