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Thursday, September 14, 2017

Tomynets v Koulik, 2017 WL 2645518 (M.D. Florida, 2017)[Ukraine][Habitual Residence] [Petition granted]

          In Tomynets v Koulik, 2017 WL 2645518 (M.D. Florida, 2017) the Report and Recommendation of the magistrate judge was adopted as the opinion of the Court and the petition for return of S.O.T. to Ukraine under the Hague Convention was granted.

          The district court observed that it may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b) (1). In absence of specific objections, there is no requirement that factual findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Rather, a district court is bound to defer to the factual findings of a magistrate judge unless the findings are clearly erroneous. Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994) (per curiam). Legal conclusions are reviewed de novo, even in the absence of an objection. See id.; LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010) (per curiam) (citing United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982)).

          The court found that (1) S.O.T. was a “habitual resident” of Ukraine immediately before the wrongful retention by Respondent; (2) the wrongful retention was in breach of Petitioner’s custody rights under the laws of Ukraine; (3) Petitioner had been exercising or would have been exercising custody rights concerning S.O.T. at the time of the wrongful retention of S.O.T.; and (4) S.O.T. has not attained the age of 16.

          The Magistrate Judge also concluded that Respondent failed to establish any of the Hague Convention’s narrow exceptions. (Id. at p. 28). On de novo review, the Court agreed with the Magistrate Judge’s conclusions. LeCroy, 397 F. App’x at 556.

          The district court held that Magistrate Judge’s findings were not clearly erroneous, and establish that S.O.T. was a habitual resident of Ukraine prior to Respondent’s retention of her in the United States. S.O.T.’s trip to the United States was intended to be for a specific, delimited period, and the parties therefore had no shared, settled intention to abandon Ukraine and make the United States S.O.T.’s habitual residence. See Ruiz, 392 F.3d at 1252-53. Further, the six months that S.O.T. was in the United States immediately prior to Respondent’s retention of her was an insufficient amount of time for her to become acclimatized. The absence of the parties’ shared intention to establish a new habitual residence and because S.O.T. did not have sufficient time to become acclimatized during her visit demonstrate that she was habitual resident of Ukraine as of June 3, 2013, the date Respondent retained her in the United States. Petitioner also maintained regular contact with S.O.T. during her six month visit to the United States. After Respondent wrongfully retained S.O.T. past the end of the planned visit, Petitioner continued to maintain or attempt to maintain contact with her via mail, Skype, and telephone calls. Petitioner’s efforts to maintain communication with S.O.T. constituted an exercise of her custody rights. See, e.g. Friedrich, 78 F.3d at 1065; Rodriguez, 817 F.3d at 472. Petitioner, therefore, established a prima facie case that S.O.T. should be returned to Ukraine because of Respondent’s wrongful retention of her in the United States. The Magistrate Judge correctly concluded that Respondent failed to establish any of the exceptions that would prevent S.O.T.’s return to Ukraine, and that the goals of the Hague Convention are furthered by returning S.O.T. to Ukraine. The Magistrate Judge’s findings are not clearly erroneous, and considered together, established that she was not well-settled in the United States. See Cooper-Houston, 37 F.3d at 604; Lops, 140 F.3d at 946. Respondent did not met his burden of establishing that S.O.T. was well-settled in the United States or that any other exception applies to defeat Petitioner’s prima facie case for return of S.O.T. to Ukraine under the Hague Convention.

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