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Monday, April 15, 2019

Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019)[Poland] [habitual residence] [petition granted]

In Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019) Petitioner Nikodem Wtulich (“Wtulich”) sought the return of his daughter AW to Poland. With the parties’ consent, the magistrate judge presided at a bench trial of the matter. He found that AW habitually resided in Poland, that Wtulich was exercising parental control until Filipkowska wrongfully retained AW in this country, and that AW was not settled in this country in the pertinent legal sense. Wtulich was therefore entitled to have AW returned to him.

The court found that AW was born in 2008 in Warsaw, Poland. Her parents were never married to one another. AW lived mostly with Filipkowska in Pisz, Poland, but Wtulich regularly spent time with her, playing soccer and celebrating holidays together. Wtulich also made decisions regarding AW’s travel outside of Poland. He twice granted the requisite permission for AW to obtain a passport, allowing Filipkowska to travel with AW to the United States several times between 2008 and 2013 to visit family in New York. In June 2013, Wtulich again gave his consent to Filipkowska to travel to the United States with AW, this time to attend her brother’s wedding. On this occasion Wtulich believed only that he was consenting to have AW spend about three months in New York before returning to Poland; he and Filipkowska discussed choosing a school in Poland for AW to attend upon her return in the fall. In September 2013, after taking AW to the United States based on Wtulich’s consent for her to be there for about three months, Filipkowska informed Wtulich via Skype that she wanted to stay in the United States longer and enroll AW in kindergarten in New York. Wtulich expressed his disagreement with the plan, but eventually agreed. Thereafter, Filipkowska stopped communicating with Wtulich except through emails.  Notwithstanding Filipkowska’s decision to extend AW’s stay in the United States, Wtulich expected AW would have to return to Poland shortly because she was traveling on a tourist visa that permitted her to stay in this country only for six months. In December 2013, however, Filipkowska informed Wtulich that she intended to retain AW in the United States so that she could attend kindergarten in New York. Fearing that he would risk losing contact with AW forever if he objected, Wtulich sent an email to Filipkowska stating that he was “happy to hear that [she] made this decision,” and that this was “also good for [AW] because [he would] rather she went to kindergarten there. That same month, however, concerned that Filipkowska intended to keep AW in the United States indefinitely, Wtulich spoke with an attorney. Wtulich maintained contact with AW through regular Skype calls, and in April 2014, he traveled to the United States for two weeks to spend time with AW. He also planned to discuss her return to Poland. Instead, sometime around May 2014, Filipkowska informed Wtulich of her intent not to return to Poland with AW. Wtulich again spoke with an attorney and, on June 12, 2014, filed an ICARA Application with the Department of State. AW’s passport expired in 2015, and Filipkowska requested Wtulich’s permission to renew it. Wtulich refused. Instead, he filed the Petition in this case on June 7, 2016. 

Filipkowska, her new husband, and AW now resided in New Jersey. AW attends school there; she excels in her education and was enrolled in several activities, including swimming and tennis. She had several friends in the United States, as well as a dog and a cat. While she spoke basic Polish, she did not read or write in that language. She preferred to remain in the United States but lacked the legal status that allows her to do so. 

The parties agreed that until Filipkowska brought AW to the United States on June 24, 2013, AW’s habitual residence was Poland. The Court credited Wtulich’s testimony in general, and in particular his assertion that he did not consent to AW remaining in the United States indefinitely. The court found that the parties’ last shared intent was for AW to return from her summer 2013 vacation in the United States and reside in Poland.  The court had to consider whether, notwithstanding the parents’ intent, “the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted.” Gitter, 396 F.3d at 133. A fair reading of the record compelled the conclusion that AW’s attachments were all in the United States. The latter finding, however, was in tension with the Convention’s objective “to dissuade parents ... from engaging in gamesmanship with a child’s upbringing in order to secure an advantage in an anticipated custody battle.” Gitter, 396 F.3d at 134. Indeed, “courts should be ‘slow to infer’ that the child’s acclimatization trumps the parents’ shared intent” because “[p]ermitting evidence of acclimatization to trump evidence of earlier parental agreement could ‘open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.’” Id. (quoting Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001)); see also Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) (“It would frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute merely by whisking the child away to a foreign land, and retaining her there long enough to amass evidence of the child’s acclimatization to the new location.”) (citing Gitter, 396 F.3d at 134). While considering evidence of acclimatization makes sense where it occurred during a period of shared parental intent about a child’s residence, doing so where the acclimatization occurs only as a result of one parent’s unilateral decision frustrates the Convention’s purpose. See Mohácsi v. Rippa, 346 F. Supp. 3d 295, 313 (E.D.N.Y. 2018) (collecting cases); Ordonez v. Tacuri, 2009 WL 2928903, at *6 n. 8 (E.D.N.Y. Sept. 10, 2009) (“[I]t would be inappropriate to consider the period of time after the alleged wrongful removal in the acclimatization analysis, as this could reward the [allegedly] abducting parent for the time during which the child was [allegedly] wrongfully retained or removed.”). Accordingly, the court considered evidence of AW’s acclimatization only to the extent it occurred between her arrival in the United States in June 2013 and May 2014, when Filipkowska told Wtulich that she intended to retain AW in the United states. AW began that period accustomed to living in Poland, where she had habitually resided for her entire life. Over the course of the next eleven months, she attended kindergarten for an entire school year. There was no additional cognizable evidence of her acclimatization. Thus, considering both parental intent and acclimatization, it concluded that AW’s habitual residence was in Poland.

There were no judicial or administrative decisions or legally binding agreements defining Wtulich’s or Filipkowska’s rights of custody. However, they agreed that each has parental authority and that Wtulich’s permission was necessary for AW to obtain a passport. Wtulich exercised his rights at the time of the alleged wrongful retention. Prior to AW’s vacation to the United States, He exercised his parental authority by granting permission for her to obtain a passport. Indeed, Filipkowska does not dispute that Wtulich exercised his rights of custody over AW. Thus, Filipkowska’s retention of AW in the United States, absent Wtulich’s consent, constituted a breach of Wtulich’s custody rights. See In re Skrodzki, 642 F. Supp. 2d 108, 114-115 (E.D.N.Y. 2007). The court found that Wtulich established a prima facie case of wrongful retention under the Convention.

Filipkowska argued that the court should dismiss the Petition because Wtulich filed it more than a year after she removed AW to the United States, and because AW was now settled in her new environment. The court held that although Wtulich did not file the Petition within one year of the wrongful retention, AW was not sufficiently settled in the United States to defeat his right under the Convention to her repatriation to her habitual place of residence in Poland. 

Wtulich filed the petition in June 2016. He knew that Filipkowska had decided to retain AW permanently in the United States, in violation of his parental rights, no later than May 2014 when Filipkowska sent him an email announcing her decision. Therefore, the court had to consider whether AW had become settled in her new environment.  Neither the Convention nor ICARA defines what it means for a child to be “settled” or prescribes a method for establishing it, but courts in this circuit understand that a child is settled if she “has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano, 697 F.3d at 56. Relevant factors include the following: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. The court noted that the weight afforded a child’s immigration status “will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child’s age, and the extent to which the child will be harmed by her inability to receive certain government benefits.” Weighing all of the circumstances, the court found that Filipkowska had not established that AW was settled in this country.

Filipkowska next asserted that Wtulich consented to AW’s retention in the United States. She also contended that Wtulich’s application for access to AW demonstrated further evidence of his acquiescence. The court did not infer from the emails Filipkowska cited that Wtulich was willing to allow AW to remain in the United States. It credited his testimony that be wrote those emails to placate Filipkowska rather than risk having her hide AW from him. Similarly, Wtulich’s initial attempt, in filing the ICARA Application, to secure access to AW rather than her repatriation did not establish his acquiescence within the Convention’s meaning. See Friedrich, 78 F.3d at 1070 (“Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.”).  To establish her acquiescence defense, Filipkowska had to show “either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. at 151 (quoting Friedrich, 78 F.3d at 1070). Although Wtulich wrote in his Application that he would “respect [Filipkowska’s] decision to stay in the [United States], subject ... to [his] rights ... to maintain meaningful contacts with [his] daughter,” he started by noting his desire for AW “to continue to live in Poland.” Wtulich also testified that he did not draft the Application’s text himself or check the box on the form’s front page selecting a remedy, but that his counsel did so. After counsel filed the Application, Wtulich asked him to file a petition for return instead, to no avail. The court found Wtulich’s testimony credible and concluded that the record does not establish that he ever intended to allow Filipkowska to retain AW in this country permanently. The Application was not “a convincing written renunciation of rights” and the record did not otherwise reveal that Wtulich demonstrated “a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. 2d at 151 (quoting Friedrich, 78 F.3d at 1070). The court found that Filipkowska failed to establish the defense of acquiescence.

Filipkowska raised a third defense that AW preferred to remain in the United States. The Convention “permits a court to ‘refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [her] views.’ ” Blondin IV, 238 F.3d at 166 (quoting Convention art. 13). The Court interviewed AW at the end of the trial, at which time she was nine years old. Her English was excellent. When I asked if she understood the nature of what was going on, she responded, “[Wtulich] wants to take me to Poland and I don’t want to go there. And my Mom doesn’t want me to go there either.”. She further indicated that she did not remember much about her life in Poland. She also stated that the she would rather the visits be in the United States, because “it’s more fun here. I like it better here than Poland.”  The court found
 that while AW was articulate, she was not sufficiently mature to give thoughtful consideration to its questions. It found that AW has not yet attained an age and a degree of maturity that requires the court to accede to her objection. It also found that while her view can and does weigh in the balance, it did not outweigh Wtulich’s right to her return. See Poliero v. Centenaro, 2009 WL 2947193, at *21 (E.D.N.Y. Sept. 11, 2009) (declining to give weight to the considered objections of thirteen- and nine-year-old children). 

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