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Saturday, March 9, 2019

Djeric v Dejeric, 2019 WL 1046893 ( S.D. Ohio, 2019)[Serbia][Habitual residence][Petition granted]

[Serbia][Habitual residence][Petition granted]

       In Djeric v Dejeric, 2019 WL 1046893 ( S.D. Ohio, 2019) after an evidentiary hearing, at which the Court heard testimony from Mr. Djeric, who was present, and from Ms. Djeric via video conference from Serbia. the Court granted Ms. Djeric’s Petition for Return to Serbia.

          Mr. and Ms. Djeric were married in Serbia and had a son, M.D. In 2013, Mr. and Ms. Djeric divorced.  On September 26, 2013, the First Basic Court in Belgrade, Serbia, granted Ms. Djeric “sole parental right” over M.D., including the rights to “care, upbringing, and custody. Thereafter, Mr. Djeric moved to the United States. In August of 2017, Ms. Djeric allowed M.D. to attend school in Columbus, Ohio, subject to certain terms, which Ms. Djeric laid out in a letter, stating: “[D.M. can] continue his education in Worthingway Middle School in Columbus.... During his education in the United States, [M.D.] will live with [Mr. Djeric], who will be taking care of him, and consult with me about everything.”
          Unbeknownst to Ms. Djeric, Mr. Djeric filed actions for custody in the Franklin County Court of Common Pleas. On March 17, 2018, Ms. Djeric learned about the Second Franklin Action and began writing letters to the court, stating “I strongly oppose to the plan that [ ] full custody be given to [Mr. Djeric]. In another letter, Ms. Djeric wrote, “I did not and will not sign any document about giving [ ] custody to anyone, in this case, to [M.D.]. I will never give up [ ] my own child.”. And in another, Ms. Djeric stated, “This is already the third letter I am sending you. I don’t know what’s going on in America, about this case. I’m completely confused by what [Mr. Djeric] is trying through your court.... I’m scared too, because I just realized it was an attempt to take my child away, for good.” Ms. Djeric also directly communicated with Mr. Djeric, texting him “... I cannot sign the documents where you are asking to disown my child.... I hereby inform you that the final deadline has been set when [M.D.] has to return to Serbia, which is on May 25, 2018.” M.D. did not return to Serbia after the school year ended on May 25, 2018

          The District Court held that the dispositive inquiry in this case was the country of the child’s habitual residence. See Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018) (en banc). The court noted that there are five “principles” to consider when determining habitual residence: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s past experience. Any future plans that the parents may have are irrelevant to our inquiry. Fourth, a person can have only one habitual residence. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Panteleris v. Panteleris, 601 F. Appx. 345, 349 (6th Cir. 2015). Therefore, in wrongful retention cases, courts look to the last date upon which it is undisputed that the child was in the new country with both parents’ consent. Karkkainen v. Kovalchuk, 445 F.3d 280, 290 (3d Cir. 2006). Specifically, courts look to the date when the non-abducting parent was truly on notice that the abducting parent was not going to return the child. Blanc v. Morgan, 721 F. Supp. 2d 749, 762 (W.D. Term. 2010).

          Ms. Djeric offered a letter she mailed to M.D.’s school, Mr. Djeric’s attorney in Serbia, and the Franklin County Court of Common Pleas. That letter stated: I, Ivana Djeric, Mother of M.D., ... hereby give my consent and agree that he can stay for the purpose of education in the United States of America, until May 25, 2018. Ms. Djeric also offered text messages, dated May 9th, 2018, which require Mr. Djeric to return M.D. to Serbia by May 25, 2018. Based on this evidence, the Court concluded that Mr. Djeric wrongfully retained M.D. on May 25, 2018, the date Mr. Djeric kept M.D. from returning to Serbia, thereby defying the limited consent of Ms. Djeric—M.D.’s sole custodian. This was also the date Ms. Djeric (the non-abducting parent) was on notice that Mr. Djeric (the abducting parent) was not returning M.D. to Serbia. See Blanc, 721 F. Supp. 2d at 762. To determine M.D.’s habitual residence, the Court limited the record to evidence related to M.D.’s experiences prior to May 25, 2018.

          The court held that only the acclimatization standard applied. Under this approach, the question is “whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Ahmed, 867 F.3d at 687. Some questions relevant to determining if a child has acclimatized to a particular country include: “whether the child participated in academic activities, social engagement, sports programs and excursions, and whether the child formed meaningful connections with the country’s people and places.” Taglieri, 907 F.3d at 408 (citing Ahmed, 867 F.3d at 687).

          The parties offered evidence that M.D. had engaged in productive activities during his time in both Serbia and the United States. Over the first thirteen years of his life in Serbia, M.D. achieved academic and athletic success. M.D. enjoyed playing soccer, basketball, and swimming at a local sports club in Belgrade. And, even while in the United States, M.D. has remained in touch with his friends and family in Serbia and he spoke to Ms. Djeric on the phone every day, sometimes for several hours at a time. During his first eight months in the United States, M.D. established close ties with his family—especially his grandmother and aunt. Mr. Djeric testified that M.D. had become friends with several classmates and neighbors. M.D.’s principal, Nathan Kellenberger, testified that M.D. and succeeded in school and had impressed teachers with his leadership skills and kindness to others. Mr. Kellenberger also explained that during M.D.’s seventh grade schoolyear, he never missed class and was a top academic student.2

          Although the record illustrated that M.D. participated in academic activities, social engagements, and sports programs, and formed meaningful connections with others during his brief time in the United States, this evidence did not overcome the significant ties M.D. still held to Serbia. See Jenkins v. Jenkins, 659 F.3d 549, 562 (6th Cir. 2009) (“sufficiency of acclimatization to a new place will vary based on the strength of a child’s relationship with his or her prior habitual residence.”) Since there was no dispute that M.D.’s prior habitual residence was Serbia, the evidence must establish a change in habitual residence to the United States.. Mr. Djeric did not carry that burden. M.D. lived in Serbia for thirteen years and, by all accounts, thrived academically, athletically, and socially. It was no surprise then that M.D. transitioned so well during his stay in the United States. Still, the Court was not convinced that M.D.’s success in the United States over a brief period transcends the meaningful connections that M.D. established over his thirteen years in Serbia. Therefore, the Court found that Serbia was M.D.’s habitual residence.

           Mr. Djeric conceded that Ms. Djeric had established the last two elements of her prima facie case. First, Mr. Djeric acknowledged that the First Basic Court of Belgrade granted Ms. Djeric “sole custody” over M.D. Second, Mr. Djeric conceded that his refusal to return M.D. to Serbia violated the First Basic Court’s order, which granted Ms. Djeric the rights to “care, upbringing, and custody” of M.D. Therefore, Ms. Djeric established her prima facie case for wrongful retention under the Hague Convention and ICARA.

          Mr. Djeric raised one affirmative defense: that Ms. Djeric had consented to or subsequently acquiesced in Mr. Djeric’s retention of M.D. See 22 U.S.C. § 9003(e)(2)(B). Ms. Djeric contended that this defense does not apply because Mr. Djeric failed to meet the requisite standard, which is narrowly construed and has a high evidentiary bar. The affirmative defense of consent or acquiescence by the petitioner “requires either (1) a formal act or statement, such as testimony in a judicial proceeding, (2) a written renunciation of rights, or (3) a consistent attitude of acquiescence over a significant period of time.” Flores-Aldape v. Kamash, 202 F. Supp. 3d 793, 804 (N.D. Ohio 2016) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996) (“Friedrich II”) ). Mr. Djeric argued that Ms. Djeric’s letter, dated August 11, 2017, amounted to a written renunciation of custody rights over M.D. This argument was rejected. In the letter dated August 11, 2017, Ms. Djeric stated “[d]uring his education in the United States, [M.D.] will live with his father, [Mr. Djeric], who will be taking care of him, and consult with me about everything.” Ms. Djeric’s declaration that Mr. Djeric “will be taking care” of M.D. while he continues his education in the United States is consistent with her custodial powers under the Serbian Divorce Decree. Moreover, Ms. Djeric had consistently refused to renounce—or even reduce—her sole parental rights over M.D. Therefore, the Court concluded that the Ms. Djeric did not renounce her rights with the August 11, 2017 letter.  Additionally, nothing in the record illustrated that Ms. Djeric consented to or acquiesced in Mr. Djeric’s wrongful retention of M.D.

          Mr. Djeric pointed out that Article 13 of the Hague Convention provides that a district court “may 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 its views.” During an in camera discussion with M.D., the Court learned that M.D. enjoyed the United States and prefered to stay here. While M.D.’s maturity and demeanor were undeniably impressive, the Court held that it would not exercise its discretionary power to refuse ordering his return because M.D.’s stated preference did not amount to a “particularized objection.” See Neumann v. Neumann, 310 F. Supp. 3d 823, 835 (E.D. Mich. 2018) (“courts have required that children subject to the Convention set forth particularized reasons why they object to return, as opposed to a generalized opposition”). As a result, none of the affirmative defenses apply.