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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