In Mohácsi v Sofia,
--- F.Supp.3d ----, 2018 WL 5818541 (EDNY, 2018) the district court denied the
fathers petition for the immediate return of his son NIR to Hungary.
Petitioner and Respondent met in June
2012 in Budapest, Hungary. Respondent moved in with Petitioner within a few
weeks after they met. After Petitioner and Respondent had been dating for a few
weeks, their relationship began to deteriorate. After moving in with
Petitioner, Respondent became aware of his alcohol consumption, and testified
he consumed alcohol on a daily basis, including beer, vodka, scotch, and wine.
Petitioner also used ecstasy. After they had been living together for a few
weeks, Petitioner began pressuring Respondent to have a sexual encounter with
another man, which made Respondent uncomfortable. The requests continued every
day during the summer and fall of 2012. When Respondent refused, Petitioner
became angry and accused her of “bring[ing] him down.” After Petitioner’s
repeated demands, she had sex with the other man. Petitioner videotaped the
encounter and uploaded the videos to his YouTube channel. As Petitioner
admitted, he physically assaulted Respondent during their relationship. In
December 2013, Respondent became pregnant with NIR. Respondent, however,
testified that during her pregnancy, she wanted to raise NIR in New York and
never intended to raise NIR in Hungary from his birth. While Respondent was
pregnant with NIR, Petitioner continued to ask her to have sex with other men,
and in February 2014, Respondent gave in to his requests. Petitioner recorded
the encounter and uploaded it to his YouTube channel. Both parties agree they
had an argument in June 2014 that effectively ended their relationship, Respondent
went to her mother’s apartment, where she lived after moving out from living
with Petitioner. NIR was born in Budapest, Hungary on September 19, 2014.
Petitioner was not listed as NIR’s father on NIR’s birth certificate. Approximately
two months after NIR’s birth, Petitioner filed a paternity lawsuit in Hungary
to establish his parental rights. Respondent did not have any issues obtaining
a passport for NIR without Petitioner’s consent. Petitioner told Respondent
that if it turned out NIR was not his son, he would kill her. In early 2015,
Petitioner continued to send harassing messages to Respondent. On August 25,
2015, Respondent left with NIR for the United States. Respondent arrived in New
York, where her mother’s husband lived at the time and still currently lives.
Respondent testified that when she left, she did not intend to return to Hungary
to raise NIR there, and had not considered going back to Hungary since coming
to the United States. Since arriving in New York, Respondent has not left. Tr.
204:2-4. Respondent’s father sends money to Respondent on a monthly basis and
financially supports her and NIR; the amount he sends her has fluctuated but
gradually increased to $1,000.00 per month. Respondent lived at several
locations in New York before she met Carlos Herrera in October 2015. They
married after living together for eight months. Mr. Herrera passed away in May
2017 because of health complications related to kidney disease and a heart
attack. In June 2016, the Hungarian court issued a decision declaring
Petitioner the father of NIR. After the court order, Petitioner was able to
change NIR’s birth certificate to reflect his paternity. Respondent and NIR were both currently
permanent residents of the United States, having applied in August 2016. Respondent
and NIR were evicted from the home they shared with Mr. Herrera and currently
live in a family center where they have a large room, private bathroom, and
kitchenette; they have now lived there for several months. NIR has his own bed
and Respondent stated she feels “safe and secure” in their current residence,
where they are permitted to stay for up to one year. NIR’s primary language is
English, and he speaks only a “few words” of Hungarian. He had friends in New York
and now attends school. Respondent testified that NIR loves New York and is
excited about going to school. Petitioner continued to threaten Respondent
since she has been in New York.
The proceeding
was commenced on May 1, 2018. During the trial both parties presented testimony
from Hungarian law experts. Respondent’s Hungarian law expert, Dr. Blanca
Illés—whose testimony this Court credited—testified Petitioner became a father
by court order. In Hungary, an unmarried father has no legal custodial rights
before paternity is established, and an engagement between the parties does not
grant an unmarried father any additional rights. Regarding the date upon which
Petitioner acquired paternity rights, Dr. Illés testified that even though the
court order at issue—bears a date of June 16, 2016, the court order did not
become legally binding and final until September 2, 2016, because of Hungarian
legal rules governing the time for appeals and finality of certain court
orders. Accordingly, Dr. Illés testified that Petitioner became the father of
NIR on September 2, 2016, once the court order became final. Dr. Illés
testified that under Hungarian law, Respondent would have been legally
permitted to leave Hungary for the United States in August 2015 because, at
that time, Respondent was the sole custodial parent, and the pendency of the
Hungarian court paternity proceeding did not change the analysis. Dr. Illés
explained that during a paternity case, a father does not have parental rights.
Dr. Illés testified that under Hungarian
law, paternity orders from a court do not have retroactive effect. Dr. Illés
testified that while a paternity case is pending, the court before which the
case is pending does not have any custodial rights, nor does a trustee
appointed to represent the interests of the child.
The district
court found that Petitioner failed to establish his prima facie case because
Petitioner could not show Respondent wrongfully removed NIR to or retained NIR
in the United States in violation of his custodial rights under Hungarian law. In
dicta, the court stated that even if
Petitioner could establish a case for wrongful removal or retention, his
petition must still be denied because Respondent satisfied her burden of establishing two
applicable defenses: (1) there is a grave risk of harm to NIR if this Court
ordered him “returned” to Hungary, and (2) NIR is now settled in the United
States and this proceeding was commenced more than one year from the date of
the alleged wrongful removal or retention.
The district
court rejected Petitioners argument that Respondent wrongfully removed NIR from
Hungary. Petitioner’s claim failed because even if Petitioner could establish
Hungary as NIR’s place of habitual residence as of August 2015, neither
Petitioner nor the Hungarian court had any custody rights at the time of
removal. Both Hungarian law experts testified that Petitioner had no parental
or custody rights before the Hungarian court issued an order declaring
Petitioner the father of NIR in June 2016 (which did not become final until
September 2, 2016). Both experts testified the Hungarian court order at issue
was not retroactive.
Petitioner
argued that even if the Court found
Respondent’s removal of NIR to the United States in August 2015 was not
wrongful, Respondent wrongfully retained NIR in the United States in violation
of his custody rights. Petitioner argued NIR’s retention in the United States
became wrongful “on the date that Petitioner’s custody rights were confirmed,”
which Petitioner contended is sometime in early July 2016. According to
Petitioner, because he did not consent to NIR’s continued retention in the
United States, Respondent’s continued retention of NIR became wrongful at that
time. The district court stated that for
Petitioner to prevail on his claim of wrongful retention, he had to show NIR
was a habitual resident of Hungary at the time he alleged Respondent’s
continued retention became wrongful. This Court found Petitioner’s paternal
rights became final on September 2, 2016. Petitioner’s claim of wrongful
retention turned on the determination of NIR’s habitual residence immediately
prior to September 2, 2016, when the Hungarian court order became final and
when Petitioner alleged the retention of NIR in the United States became
wrongful.
The court observed that under Gitter,
the first step in determining habitual residence under the Convention is to
look into the intent “of those entitled to fix the child’s residence.” Gitter,
396 F.3d at 134. When Respondent moved with NIR to the United States in August
2015, Petitioner had not been confirmed as NIR’s father and was not entitled to
fix NIR’s residence. See Redmond, 724 F.3d at 747 (finding respondent, who had
sole custody of the child at issue, had the “exclusive right to fix the place
of [the child’s] residence”). As a result, only Respondent’s intent was
relevant. She testified she always intended to raise NIR in New York and never
intended to raise NIR in Hungary. Her intent was supported by evidence in the
record, including her marriage to a U.S. citizen, the fact that she and NIR were
both lawful permanent residents, and the fact that she had not left New York
since arriving. Respondent’s physical move to the United States with NIR,
coupled with her intent to raise NIR in New York, established that as of
September 2, 2016—when the Hungarian court’s order became final—the United
States had already been established as NIR’s habitual residence. Petitioner’s
claim of wrongful retention failed because Petitioner could not show NIR hasdbeen
wrongfully retained in a country other than his place of habitual residence,
which was the United States.
Petitioner
argued it is “absurd” to suggest Hungary was not established as NIR’s place of
habitual residence. Given the lack of shared intent and the breakdown of the
parties’ relationship prior to NIR’s birth, the Court concludes Hungary was
never established as NIR’s place of habitual residence. See, e.g., In re
A.L.C., 607 F. App’x at 662-63 (concluding the child’s “nine months as an
infant in Los Angeles do not result in [the child] acquiring habitual residence
in the United States” given lack of shared parental intent). Although
Petitioner emphasized the determination of the Hungarian court that NIR was a
habitual resident of Hungary, the Hungarian court was not deciding habitual
residence under the Convention and was not applying the applicable standards
for determining habitual residence under the Convention. Petitioner has failed
to establish that NIR—who was less than one year old when Respondent moved with
him to the United States in August 2015—was ever habitually resident in Hungary
given the lack of shared intent to raise NIR there, the breakdown of the
parties’ relationship prior to NIR’s birth, and NIR’s presumed inability to
form meaningful connections as an infant before leaving. Accordingly, even when
the Court considered evidence of Petitioner’s stated intent to raise NIR in
Hungary, Petitioner’s claim of wrongful retention still failed.
The Court noted that “a parent may not
use the Convention to alter the child’s residential status based on a legal
development in the parent’s favor.” Redmond, 724 F.3d at 742. By the time the
Hungarian court’s order declaring Petitioner the father of NIR became final on
September 2, 2016, Respondent and NIR had been living in the United States for
over a year—more than half of NIR’s life—and NIR’s place of habitual residence
had been established as the United States, for the reasons already described.
Petitioner could not escape the reality that Respondent acted lawfully in
taking NIR to the United States and establishing his place of habitual
residence as New York, and he could not use the Hungarian court’s order to
require NIR’s return to Hungary. Accordingly, Petitioner’s claim of wrongful
retention was without merit.
The district court indicated that even
if Petitioner could establish his prima facie case, his petition still had to be
denied because Respondent established the “grave risk of harm” defense, and the
“well-settled” defense. The balance of the Court’s decision, (which is dicta)
addressed these two defenses.
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