In Martinez v Urena, 2018 WL 2451199 (EDNY, 2018) Petitioner moved the Court for an order directing the parties’ twin boys be returned to the Dominican Republic in accordance with a stipulation of settlement which was previously “so-ordered” by the district court. The lawsuit was commenced in November 2016. The complaint recited that petitioner was a citizen of the Dominican Republic. Respondent was a citizen of the United States and the Dominican Republic. The parties were married in 2010. After their marriage, the parties tried unsuccessfully to obtain a United States visa for petitioner. In October 2013, after the parties’ twin boys were born, respondent proposed that he bring them to the United States and that petitioner continue with the visa-application process so that she could join them. Petitioner authorized the children to travel to the United States in 2014 but did so on the implicit condition that she would join them in the United States as soon as her visa application was granted. After the two boys traveled to the United States to meet respondent (no later than July 28, 2014), respondent filed divorce papers against petitioner in the Dominican Republic. Respondent then informed petitioner that he intended to keep the children with him in the United States. Respondent obtained a default custody order in Queens Family Court. Petitioner did not participate in the proceeding. On July 28, 2015, exactly one year after the date that her second child traveled to the United States, petitioner filed an application under the Hague Convention. Petitioner then filed this complaint in federal court in November 2016 seeking the return of her twin boys under the Hague Convention.
In January 2017, the parties entered into a stipulation, which provided (in relevant part): 1. Custody, including temporary custody, of the Children, AAUM and ASUM, shall be determined by a court in the Dominican Republic; 2. Petitioner shall commence the custody proceeding in the Dominican Republic by February 10, 2017; 3. Respondent shall subject himself and, if required by a court in the Dominican Republic, the Children[,] to the jurisdiction of the court in the Dominican Republic for purposes of such custody proceeding; 4. If the Children must be present in the Dominican Republic for purposes of such custody proceeding or for the court in the Dominican Republic to obtain jurisdiction over them, the Children shall be made present in the Dominican Republic for such purposes; * * * 9. The Court shall retain jurisdiction over this matter for purposes of enforcing this Stipulation and Order. The parties submitted the proposed agreed-to stipulation to the Court, which “so-ordered’ it.
As contemplated by the stipulation, petitioner commenced a proceeding for custody in the Dominican Republic. The Dominican Republic court held a hearing on the case in January 2018 and dismissed the case. Petitioner then filed this motion for an order directing the children to be returned to the Dominican Republic. Petitioner attached to he motion a translation of the Dominican Republic court’s opinion dismissing the case. According to petitioner, the dismissal was for lack of jurisdiction because the children resided in the United States with their father. Article 90 of the Dominican Republic Code 136-03, states that a custody claim must be filed in the court where the person with guardianship over the children resides. According to petitioner, this dismissal was without prejudice and petitioner could bring her case again if respondent returns the children to the Dominican Republic. To support this interpretation, petitioner provided a declaration of her counsel from the Dominican Republic, sworn under penalty of perjury.
The Petitioner then made the current motion. The district court observed that this case and the Petitioner’s motion was based on the Hague Convention and that the return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19; see also 22 U.S.C. § 9001(b)(4). Petitioner sought an order enforcing the stipulation and order to which both parties agreed, which was intended to resolve petitioner’s claim under the Hague Convention that respondent wrongfully removed their children from the Dominican Republic to the United States because he removed the children in breach of her rights of custody over them.
The district court pointed out that Respondent’s opposition did not challenge the Court’s authority to enforce the parties’ agreed-to order but made several arguments on the merits of petitioner’s underlying complaint. First, respondent argued that petitioner could not bring her claim under the Hague Convention because she granted permission for the children to travel to the United States in the first instance. Second, respondent argued that bringing the children to the Dominican Republic would be futile because the court in the Dominican Republic has already determined that he has legal custody, or, in the alternative, it would be futile because the Dominican Republic court will simply defer to the Brooklyn Family Court’s current custody order. It rejected this argument because that Court did not decide the merits of the claim but dismissed the case for lack of jurisdiction because the children resided in the United States with their father. Furthermore, respondent has not cited any provisions of Dominican Republic law to support his argument that the Dominican Republic court would defer to the Brooklyn Family Court if the children were returned to the Dominican Republic. Finally, respondent argued that Hague Conviction did not apply because “petitioner waited more than a year to bring the instant motion before this Court.” The court pointed out that Defendant appeared to be invoking the “now settled” defense in Article 12 of the Convention. A respondent who opposes the return of the children has the burden of proving this exception under Article 12 applies, meaning that he must establish, by the preponderance of the evidence, that (1) the petitioner did not file the petition within one year of the time that the child was wrongfully removed or retained and (2) the child has become settled in the new environment.
The district court found that the Respondents argument was misplaced. It attacked the underlying petition, which was already resolved through the parties’ stipulation and was not at issue in this motion. Moreover, even if it were appropriate to consider respondent’s “now settled” defense to the underlying petition respondent did not submit any evidence that the children have become settled in their new environment.
Petitioner sought to enforce an order previously issued by this Court. None of respondent’s arguments in opposition provided reasons why the Court should not issue the requested order. However, 22 U.S.C. § 9004(b) limits a court’s authority to “order a child removed from the person having physical control of the child unless the applicable requirements of State law are satisfied.” Petitioner did not submit any evidence that the order she requested requiring respondent to surrender the children to her or a Court-appointed guardian complied with New York state law. The Court therefore granted petitioner’s request for an order enforcing the terms of the parties’ stipulation as follows: “Respondent is directed to return the children to the Dominican Republic as promptly as possible, but no later than 60 days from the date of this order. Respondent must pay the children’s reasonable travel expenses to return. The children must remain in the Dominican Republic for however long is required for a Dominican Republic court to exercise jurisdiction over them and the parties’ custody dispute. If respondent wishes the children to return in the company of petitioner or another temporary guardian appointed by the court, in lieu of returning with them to the Dominican Republic himself, he may do so, but must inform the Court of this choice within 14 days.”