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Tuesday, December 11, 2018

Chumachenko, v. Belan, 2018 WL 6437062 ( S.D. New York, 2018)[Ukraine] [Habitual residence] [Petition granted]

        In Chumachenko, v. Belan, 2018 WL 6437062 ( S.D. New York, 2018) the District Court granted the petition of Olena Chumachenko  a Ukrainian citizen, for the return of her two minor sons to Ukraine. 
        Petitioner and Respondent, both of whom were Ukrainian citizens, were the parents of P.B. and D.B., P.B. was four years old and D.B. was three. Petitioner and Respondent started cohabitating in Ukraine, in 2013, when Petitioner became pregnant with P.B. In March 2014, Petitioner and Respondent traveled to Orlando, Florida to take up temporary residence in anticipation of P.B.’s birth. in order to take advantage of the country’s medical facilities. In Orlando, Petitioner and Respondent purchased a car and rented an apartment for an unknown duration. P.B. was born in June 2014, and the family remained in Florida until July 2014. the parties returned to Ukraine with P.B. in August. When Petitioner and Respondent returned to Ukraine, Petitioner cared for P.B. full time and did not otherwise work. The family reintegrated into their community. Around February 2015, Petitioner discovered she was pregnant with the couple’s second child, D.B. Again, Petitioner and Respondent decided to give birth in Orlando and, in late August 2015, traveled to Florida to carry out their plan. Petitioner and Respondent leased an apartment, bought furniture, and purchased a car. D.B. was born in December 2015 and, in January 2016, the family returned to Ukraine. P.B. and D.B. remained in Ukraine until October 2017, when Petitioner and Respondent again traveled to Orlando after learning that Petitioner was pregnant with the parties’ third child. Petitioner and Respondent discussed a permanent move to the United States around this time, but the parties had not made a final joint decision to relocate permanently before they returned to Florida in anticipation of the birth of the third child. Respondent was consistently interested in relocating to another country and preferred the United States. The parties purchased round-trip tickets for their journey to and from Florida. The parties removed P.B. from his preschool in the Ukraine, but in no other way cut ties with Ukraine. When they arrived in Florida in October 2017, the parties entered into a seven-month residential lease and purchased a car and furniture, just as they had done with Petitioner’s prior pregnancies.The parties enrolled P.B. in a pre-K program in Florida but neither Petitioner nor Respondent had obtained a visa that would allow them to remain in the United States legally for more than a few months. Neither Petitioner nor Respondent took steps to obtain work or permission to work in the United States during this time. Petitioner miscarried around December 2017, and the parties returned to Ukraine in late January 2018. They put the furniture that they had purchased in storage and left their car in the care of Belan’s brother, who resided in Florida. Upon their return, the Children were again enrolled in daycare and resumed activities with their family and friends. Petitioner rented out her apartment, but moved with Respondent and the Children to another home—an apartment they purchased in Kherson. Around mid-February 2018, Respondent had to attend to proceedings in two lawsuits that were pending in Ukraine. In March 2018, Petitioner started an interior design business in Kherson. At all relevant times, Respondent’s business remained in Ukraine. Respondent asserted that, during the spring of 2018, he was reorganizing his business so that he could run the company remotely. This testimony made it evident that, as of the spring and early summer of 2018, the parties had not relocated to the United States. The parties’ return to Ukraine following Petitioner’s miscarriage marked the beginning of a particularly tumultuous period of their relationship, during which Petitioner vacillated as to whether she wanted to relocate to the United States with Respondent and the Children. Petitioner had learned of Respondent’s relationships with other women in the winter of 2017. In March 2018, Petitioner “had reached [her] limit” with Respondent’s affairs and placed an advertisement on a dating website. Months later, Respondent discovered that Petitioner herself had started a relationship with “a man who lived abroad” and, in response, Respondent moved out of their shared apartment. In late June, the parties apparently reconciled and Respondent told Khrystych, who Petitioner understood to be Respondent’s girlfriend, that he “intended to stop all communication with [her] and that he was no longer interested in [Khrystych] working for him.” Also in late June, Petitioner discovered that Respondent was “continuing to communicate with his girlfriend.” Nonetheless, around this time, Respondent returned to the apartment he shared with Petitioner and the parties made plans to travel together to Florida. There was no credible evidence that the trip was jointly planned to implement permanent relocation to the United States. The night before they were scheduled to leave for Florida, the parties “got into an argument” and Petitioner refused to go on the trip. Respondent took the Children to Florida without Petitioner and, on July 13, 2018, returned with them to Kiev rather than Kherson.

          On July 20, 2018, Petitioner agreed to reconcile with Respondent and cease communication with the “man who lived abroad,” in order to reunite as a family. However, their reconciliation was short-lived. On July 22, 2018, following a heated argument, Respondent told Petitioner he was taking the Children to a swimming pool in Kherson. In a telephone call and text messages as he prepared to take the Children to the airport, Respondent told Petitioner that he was taking the Children to the United States, and then he took them to Los Angeles.
        The District Court found that Petitioner never consented to Respondent taking the Children to the United States. Respondent testified that he and Petitioner “never discussed” living in the United States “not as a family.” Petitioner’s lack of consent was further evidenced in her text messages to Respondent following his departure with the Children. Four days after Respondent took the Children to the United States, she contacted an attorney. On August 21, 2018, Petitioner “filed a Hague case in the State of California.” From August 23, 2018, to September 8, 2018, Respondent stopped communication with Petitioner, and did not inform Petitioner of the Children’s whereabouts. On September 24, 2018, Respondent filed an Order to Show Cause in New York State Court seeking temporary custody of the Children. Respondent’s state court petition included a false representation that Petitioner had abandoned the family in January 2018, and also asserted that the family had planned to relocate to the United States in the summer of 2018 (rather than in October 2017, as Respondent I had maintained in these proceedings). On October 23, 2018, Ms. Chumachenko filed a petition with the district Court seeking the return of the Children to Ukraine.

          The parties agreed that Petitioner had custody rights under Ukrainian law, recognized by the Convention, which she was exercising at the time Respondent removed the Children to the United States. Therefore, the second and third elements of the habitual residence test were satisfied, and the Court was left to determine the Children’s habitual residence. The District Court observed that to determine a child’s habitual residence, the Court (i) inquires into the shared intent of those entitled to fix the child’s residence at the latest time that their intent was shared, and (ii) considers whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005). Respondent did not argue that the Children had become acclimatized to the United States. Since, “[n]ormally the shared intent of the parents should control the habitual residence of the child,” Gitter at 134, and “a change in geography is a necessary condition to a child acquiring a new habitual residence,” Gitter at 133, the Court focused its habitual residence inquiry on whether Petitioner had proven her contention that the parties never had a shared intent to change the Children’s habitual residence from Ukraine to the United States notwithstanding the family’s move to Florida in October 2017 or whether, as Respondent contended, the parents formed such a shared intention prior to October 2017 and cemented it by moving to Orlando in October of that year.

          The court stated that to determine whether the parents shared an intent to fix the child’s residence, “the court should look ... at actions as well as declarations.” Id. at 134. “Shared intent” conditioned on certain prerequisites will not fix the child’s residence if those conditions do not materialize. See Mota v. Castillo, 692 F.3d 108, 115 (2d Cir. 2012) Petitioner asserted that Ukraine at, at all relevant times, had been the Children’s habitual residence. According to Respondent, “[t]he parties’ last shared intention as to what the children’s country of habitual residence would be was the United States,” and “the parties had this last shared intention prior to their travel to the United States with the children in October 2017.” The Court concluded that Petitioner demonstrated by a preponderance of the credible evidence that Ukraine was, and remains, the Children’s habitual residence. The Children spent the overwhelming majority of their lives in Ukraine. They had attended school in Ukraine. Their friends and extended family were almost entirely in Ukraine. Their parents were Ukrainian citizens who owned property and Werke in Ukraine. The record included no objective evidence that the parents jointly decided to abandon Ukraine as their home or to relocate the Children to another country regardless of the domicile of one or both parents. The credible testimonial evidence regarding the parents’ subjective intentions persuaded the Court that, while Respondent was determined to relocate the Children, with or without Petitioner, permanently to another country, Petitioner never shared that firm, unconditional intention.
       Respondent argued that the parties intended their trip to the United States in October 2017 to be a permanent relocation. Petitioner, on the other hand, testified credibly that they had only considered, and had not yet decided on, permanent relocation by that time. Petitioner had also explicitly placed certain preconditions on any potential relocation: she “told [Respondent] that if [they] were going to move as a family and secure immigration visas to allow [them] to move, [they] would have to get married first. It was also understood that [Petitioner] would have to stop having relationships outside of [their] relationship.” Evidence proffered by both Petitioner and Respondent supported this testimony. Nothing in the record indicated that any of Petitioner’s conditions were met.

          The court found that Respondent failed to rebut Petitioner’s credible testimony that the parties intended the October 2017 trip to be a temporary stay for the limited purpose of giving birth, just as they had done on two prior occasions. The credible evidence demonstrated that the parties did not jointly decide to move permanently to the United States in October 2017, were not prepared or able to stay in the United States permanently when they arrived in October 2017 and that, at best, they were considering whether to move to the United States as a family at some time in the future. The evidence also demonstrated that Petitioner and Respondent never shared an intent to permanently move the Children to the United States outside the confines of an intact family unit. Respondent, alone, moved the Children. Therefore, the Court concluded that Petitioner met her burden of proving that Ukraine Remains the Children’s habitual residence. See Hofmann, 716 F.3d at 292.

          The court noted that Article 13 provides that the Court is not bound to order the return of children if the respondent establishes by a preponderance of the evidence that the petitioner “consented to or subsequently acquiesced in the removal or retention.” Respondent asserted that Petitioner consented to his taking the Children to the United States to establish permanent residence here. The court found that  Respondent failed to prove by a preponderance of the credible evidence that Petitioner consented to his removing the Children from Ukraine for the purpose of permanent relocation.