In Trott v Trott, 2020 WL 4926336 (E.D. N. Y., 2020) the petitioner, Keno Trott, brought an action against the respondent, Kristos Trott, also known as Kristos Clarke for the return of TKI and KMLT seeking their to Bermuda pending the resolution of custody proceedings in the Bermudian courts. The motion to dismiss the petition was denied and the petition was granted.
Trott and Clarke married in Bermuda in 2008, when TKI was ten months old. Although Trott was not TKI’s biological father, he raised her as his own, and the parties have always considered him to be TKI’s father. TKI was born in New York in 2007; she was now twelve years old and a United States citizen. KMLT, Trott and Clarke’s biological child, was born in Bermuda in September of 2008; she was now eleven years old and holds dual United States and Bermudian citizenships. The children lived in Bermuda from 2008 to 2013. (Trott and Clarke separated in 2011, and in 2013, Clarke moved to New York with TKI and KMLT to live with her older children from a previous relationship. Although there was a court order in place prohibiting the children’s removal from Bermuda without leave of the court, Trott did not object at that time to Clarke’s move with the children. Instead, he exercised his custody rights by visiting the girls in New York, and they spent their summer holidays in Bermuda. This arrangement continued amicably until the summer of 2018, when the children “refused” to return to the United States after their summer holiday. The children confided in their father that a friend’s father had sexually abused them earlier that year in New York. Clarke reported the abuse to the police when it happened, and the perpetrator was arrested, but she did not tell Trott about the abuse or send the girls to see a counselor. TKI also reported that Clarke had hit her several times, and neglected her and her younger siblings by leaving them at home alone in the evenings. After hearing these reports, Trott decided it would be in the children’s best interest to stay in Bermuda instead of returning to New York. When Trott refused to send the girls to New York in September of 2018, Clarke brought a Hague Convention petition against Trott in Bermuda.
The Supreme Court of Bermuda granted Clarke’s request to return the girls to New York. As part of that proceeding, social workers interviewed the girls separately at least twice. Both girls told the social workers that a friend’s father sexually abused them; the social workers noted that KMLT was “still visibly disturbed by this incident.” The girls said they wanted to visit their mother, but neither wanted to live with her. The Supreme Court of Bermuda held that Trott had wrongfully retained the children in Bermuda, and “failed to establish there is grave risk of harm to the children being exposed to physical and psychological harm in the context of an exception to the general rule of prompt return of children under the Convention.” The court expressed concerns about the situation to which the children would return in New York and directed counsel to identify “what protective measures are available to ensure the smooth and safe return of the children.” The Court also directed Clarke to “provide written assurance simultaneously to this court and the US authorities that she has appropriate accommodation, ability and means to feed the children in the interim period pending the US Courts, Social Services and other relevant agencies being seized of proceedings regarding these children.” Nonetheless, the court did not take any steps to ensure that the conditions would be in place before the children were taken back to New York.
The Bermuda Court of Appeal reversed the lower court’s ruling. The Court of Appeal held that the lower court gave insufficient consideration to the exceptions specified in Article 13 of the Hague Convention which deals with the defense of grave risk of harm: “The judicial or administrative authority may also 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. The Court of Appeal found that the lower court did not give the children’s objections “the weighty consideration they deserved,” and had confused the children’s “willingness to visit their mother” with “a willingness to return to reside with her.” Moreover, the Court of Appeal found that while Trott had not established a “grave risk” of physical abuse if the girls returned to New York, the lower court did not consider whether forcing the girls to return to New York would create an “intolerable situation” under Article 13(b) of the Convention. The Court of Appeal also found that the lower court had improperly conditioned the children’s return to New York on terms that the court could not enforce. After reviewing the welfare reports and the girls’ statements, the Court of Appeal concluded that the children “should continue to reside in Bermuda in the custody of their father at least until a final determination of the arrangements for their custody and care can be made by the Courts of this jurisdiction.”
In October of 2019, Clarke petitioned the Supreme Court of Bermuda, to allow the children to travel to New York over their Christmas holidays. Relying on a social worker’s determination that the children could safely travel to the United States to visit their mother, the Supreme Court approved Clarke’s application and permitted the children to travel to New York from December 26, 2019 to January 3, 2020. In its order, the court noted that it would retain jurisdiction over the children until further ordered, and specifically warned Clarke that she “may be held in contempt of court and subject to imprisonment, a fine or both” if she disobeyed the order. Clarke did not return the children to Bermuda on January 3, 2020, and kept them in New York.
Trott asked that TKI and KMLT be returned to Bermuda, where they were habitually living at the time of their removal, in compliance with the order of the Supreme Court of Bermuda. For purposes of this motion, the district court accepted as true the factual allegations in the petition and drew all reasonable inferences in the petitioner’s favor. The district court held that the Bermuda Court of Appeal’s decision, based on a meticulous review of the record and a well-reasoned application of the Hague Convention, was entitled to comity. The Court of Appeal agreed that Trott wrongfully retained the girls in Bermuda, but found that he established valid defenses to return under Article 13 of the Convention. The Court of Appeal determined that the lower court did not give appropriate consideration to the children’s objections to returning to New York, and did not address the likelihood that the children would be subjected to an “intolerable situation” under Article 13(b) if they were forced to return to New York, where they had been sexually abused. Finally, the Court of Appeal determined that the lower court had conditioned the children’s return on terms that the court could not enforce, including that “adequate arrangements [ ] be put in place for their protection and care.”
The Court rejected Clarkes argument argues that the petition did not state a prima facie claim under the Hague Convention, because the children habitually reside in New York, not Bermuda, and because Trott fails to state any custody rights under New York law. At the time the children were retained in New York, they were habitually resident in Bermuda pursuant to a court order. Under Bermuda law, “[a] child is habitually resident in the place where [she] resided ... with one parent under a separation agreement or with the consent or implied consent of the other or under a court order ....” Bermuda Child Act 1998 36L(2)(b). Clarke kept the children in New York in contravention of the Bermudian court’s order, and in breach of the interim custody rights that had been granted to Trott under Bermudian law.
The respondent’s motion to dismiss the petition was denied, and the petition was granted.
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