N.L. was the shared daughter of petitioner and respondent. She was born in Ulcinj, Montenegro in May 2014 and was six years old. N.L. was a citizen of Montenegro. Petitioner and respondent also shared an older son, D.L., who was now nine years old. D.L. currently lived with petitioner, who has had official custody of him since 2018. When N.L. was approximately twenty days old, she and respondent ceased living with petitioner and moved to Podgorica, Montenegro. In April 17, 2015, the Primary Court in Podgorica issued an order governing N.L.’s custody. The court awarded “care and upbringing” to respondent, “with whom the minor [N.L.] is to reside.” The court also ordered that petitioner had the right to have contact with N.L. every fifteen days until she reached two years old, after which he would have the right to take her with him every other week from Friday evening to Sunday evening. N.L. remained living with respondent in Podgorica and attended school in Montenegro until she entered the United States in July 2019. Respondent claims she “struggled to live” and “was forced to request help from the social services and Food Bank.” Petitioner denied that his “children went to bed hungry” and claims that respondent’s apartment in Podgorica “had everything.” Petitioner claimed that in accordance with the custody judgment he visited N.L. in Podgorica often before she turned two. After that, he claims he continued to visit her or bring her to Ulcinj on alternating weekends. Respondent denied these assertions. Petitioner failed to pay child support on three occasions, resulting in criminal judgments against him. But petitioner testified that he does not currently pay child support for N.L. because the child support respondent owes him for their son’s care is a nearly equal amount. And respondent admitted that petitioner paid “regularly every month after the last court order” up until June 2019.
On August 11, 2017, petitioner and respondent signed similar consent forms, one allowing D.L. to “cross the border in the company of” petitioner “to travel out of Montenegro (Serbia and abroad) in the period unlimited,” and one allowing N.L. to “cross the border accompanied by” respondent “for the purpose of traveling abroad (America) during the period from unlimited.” Petitioner testified that the form for N.L. gave respondent “the consent that she can go and travel as much as she wants so that I don’t have to go every time to Podgorica every time she wants to travel. Just as I have for the son, so that I don’t have to go every time to Podgorica, to United States, to ask for consent or to let the son go to excursion with school.”. Respondent testified that in presenting the form for D.L., petitioner “never acknowledged any intention to have our son relocated. He asked me for the permission for foreign travel at the same time when I asked him to sign off the permission that I can travel with our daughter. So, I signed also the permission for him that he can travel with our son. When asked if the form for N.L. “sa[id] anything about relocation,” respondent replied, “[N]o. It says here just for travel .... [T]his is the permission just to -- that you can freely get over the border to get out of the country, and nothing else.”. Respondent further testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Nevertheless, she asserted that “[t]here’s no time limit, how long I can stay with my child here in the United States.”
N.L. and respondent entered the United States in July 2019 on Montenegrin passports. To help N.L. obtain her passport, petitioner had signed a passport application for her shortly before she traveled to the United States. N.L. and respondent obtained nonimmigrant B-2 visitor visas to the United States. B-2 visas “are nonimmigrant visas for persons who want to enter the United States temporarily ... for tourism.” N.L.’s and respondent’s B-2 visas expired on January 1, 2020.
N.L. has been in New York for more than eighteen months. She lives with respondent in an apartment with respondent’s sister, mother, and niece, and is enrolled in school, which takes place remotely due to the COVID-19 pandemic. N.L. “is in first grade and is learning how to write, draw, etc.” N.L. is attached to her mother, Elezovic, with whom she’s lived since birth.” Respondent is not currently employed, other than occasionally helping her sister with projects.
Articles 73 through 79 of Montenegrin Family Law regulate the relations between parents and children, as well as procedures related to the exercise of parental rights. Petitioner’s expert, Vladimir Radonjic, defines parental rights as “different duties and rights of parents to care about personality, rights and interests of their children.” Respondent’s expert, Vesna Raicevic, defines parental rights as “ha[ving] custody.” Article 78 provides that “[o]ne parent shall exercise parental right on the grounds of court decision when the parents do not live together, and have not concluded an agreement on exercise of parental right.” Both experts agree that Article 78 applies to N.L. Respondent asserts, based on Raicevic’s report, that the 2015 custody judgment appointed her “as the only parent who exclusively exercises parental rights” over N.L. Petitioner, denied that only respondent has parental rights over N.L. Article 79 provides: The agreement on the independent exercise of parental rights includes the agreement of the parents on entrusting the joint child to one parent, the agreement on the amount of contribution for the maintenance of the child from the other parent and the agreement on maintaining the child’s personal relations with the other parent. The agreement on the independent exercise of parental rights transfers the exercise of parental rights to the parent to whom the child is entrusted. A parent who does not exercise parental rights has the right and duty to support the child, to maintain personal relations with the child and to decide on issues that significantly affect the child’s life jointly and in agreement with the parent exercising parental rights. Issues that significantly affect the child’s life, in terms of this law, are considered in particular: the child’s education, undertaking major medical procedures on the child, changing the child’s residence and disposing of the child’s property of great value. The rights granted under Article 79 of the Family Law of Montenegro can be altered only by a court order.
Petitioner filed the action on July 13, 2020. Petitioner argues that he is entitled to N.L.’s return to Montenegro because he had ne exeat rights protected by the Hague Convention and respondent breached those rights by keeping N.L. in the United States beyond the six months to which he consented. Respondent claims petitioner does not have any custody rights protected by the Hague Convention and even if he did, he waived them either by consenting to unlimited travel or failing to exercise those rights when N.L. was brought to the United States.
The district court found that the uncontested facts proves that six-year-old N.L. was habitually resident in Montenegro before coming to the United States. “[A] child’s habitual residence depends on the totality of the circumstances specific to the case,” taking into account “the family and social environment in which the child’s life has developed.” Monasky v. Taglieri, 140 S. Ct. 719, 723, 726 (2020) “Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.” Here, it was undisputed that N.L. resided in Montenegro her entire life, up to the point when respondent took her to the United States more than eighteen months ago.
The district court found that Respondent breached petitioner’s ne exeat rights over N.L. The Supreme Court has recognized that ne exeat rights—meaning joint rights to determine a child’s country of residence—constitute custody rights under the Hague Convention. See Abbott, 560 U.S. at 10–11. Here, it was undisputed that Article 79 of the Montenegrin Family Law grants “[t]he parent who does not exercise parental rights” the right “to decide on ... the child’s residence” and that this right can be derogated only through court order. The parties contested whether respondent exclusively holds “parental rights” over N.L. But this dispute was immaterial because Article 79 endows ne exeat rights even to “[t]he parent who does not exercise parental rights.” In fact, both experts appear to agree that Article 79 applies in this case. Thus, Article 79 established that petitioner has presumptive ne exeat rights over N.L.
Petitioner also had shown that respondent wrongfully retained N.L. in breach of his ne exeat rights. “ ‘[W]rongful retention’ occurs when one parent, having taken the child to a different Contracting State with permission of the other parent, fails to return the child to the first Contracting State when required.” Marks ex rel. SM v. Hochhauser, 876 F.3d 416, 421 (2d Cir. 2017). It was undisputed that petitioner consented to N.L. traveling to the United States with respondent and that N.L.’s and respondent’s B-2 tourist visas expired on January 1, 2020, which requires them to leave the country. Respondent contested, however, the scope of petitioner’s consent. She claims that the face of the consent form authorized N.L.’s remaining in the United States indefinitely because it allows N.L. to “cross the border” for the purpose of “traveling” abroad for an “unlimited” period of time. But in evaluating consent, courts look to “the petitioner’s subjective intent, including the nature and scope of the alleged consent.” In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005). To preclude the return remedy, a respondent must show the petitioner had the “‘subjective intent’ to permit Respondent to remove and retain the child for an indefinite or permanent time period.” While one could interpret the term “unlimited” to encompass one trip of infinite length on its face,10 petitioner presented uncontroverted evidence that he understood the consent form only to authorize an unrestricted number of temporary trips. Not only did petitioner testify to this understanding, but respondent also confirmed it. She testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Elezovic Dep. Tr. 61:10–14, 22–24. Thus, petitioner could not have formed the intent to authorize N.L.’s indefinite relocation to the United States beyond the bounds of a tourist visa. Moreover, respondent testified that she understood both the form petitioner signed for N.L. and the nearly identical form she signed for D.L. to grant “permission just to ... freely get over the border to get out of the country, and nothing else.” Based on this evidence, no reasonable jury could find that petitioner consented to N.L.’s indefinite retention in the United States and thus petitioner has established that N.L.’s retention was wrongful after the expiration of the parties’ B-2 visas on January 1, 2020.
[T]he standard for evaluating whether a petitioner is exercising custody at the time of removal is fairly lenient.” Valles Rubio v. Veintimilla Castro, No. 19-CV-2524 (KAM) (ST), 2019 WL 5189011, at *18 (E.D.N.Y. Oct. 15, 2019), aff’d, 813 F. App’x 619 (2d Cir. 2020). “A ‘person cannot fail to “exercise” [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’” Souratgar v. Fair, No. 12-CV-7797 (PKC), 2012 WL 6700214, at *4 (S.D.N.Y. Dec. 26, 2012) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)), aff’d sub nom. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013). “[A] ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country.” Abbott, 560 U.S. at 13. “If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been exercised but for the removal or retention.” Petitioner had shown that respondent sought his permission to travel to the United States with N.L. and that he consented to temporary visits. These facts alone show that petitioner was exercising his ne exeat rights at the time respondent wrongfully retained N.L. See Valles Rubio, 2019 WL 5189011, at *18 (finding petitioner exercised ne exeat right “by consenting to limited-duration travel”). Moreover, petitioner has shown that respondent retained N.L. in the United States past the boundaries of his consent, see supra Section I.B, and that he submitted a request for return under the Hague Convention on February 3, 2020, in addition to the instant lawsuit. See Haimdas, 720 F. Supp. 2d at 204 (finding the petitioner “would have exercised her ne exeat right but for the retention” because she declined to consent to her children “staying out of England for longer than one month” but “had no way to enforce that condition once they were physically present in the United States”).
Petitioner established a prima facie entitlement to the return remedy that respondent has failed to rebut. Respondent raised four affirmative defenses: (1) that petitioner consented to N.L.’s retention in the United States; (2) that petitioner was not exercising custody rights at the time of N.L.’s retention; (3) that judicial proceedings were not commenced within one year of N.L.’s retention and now she is well settled in New York; and (4) that there is a grave risk that N.L.’s return would expose her to harm. She failed to show either that she was entitled to summary judgment on any of these defenses or that genuine disputes of material facts existed regarding them.