State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)
Petitioner B.E. brought this writ of habeas corpus to produce *the child M.C.-E., his child. The writ was satisfied on January 4, 2022. Mr. E. filed a petition permitting him to immediately take M. to London based on the court’s emergency jurisdiction under Domestic Relations Law §§ 75-a (7) and 76-c and the Hague Convention on the Civil Aspects of International Child Abduction. M. was with his mother, respondent T.C., in Brooklyn. She moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a) (4) and Domestic Relations Law § 76-e (1) and (2).
Petitioner B.E. and respondent T.C. were married in London, England, in June 2007. In 2013 they adopted their son M.C.-E. They resided in London until Mr. E., who worked in the financial field, received an offer from Andreessen Horowitz, after which, in 2014, the family relocated to San Francisco, California. Ms. C. is a musician, well-known for her particular musical style. The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parents’ home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.
Tthe court denied the petitioner’s application to apply UCCJEA jurisdiction. Concurrently, Mr. E. sought a ruling that under the Hague Convention that England was M.’s “habitual residence” and immediately return M. to his care. The Supreme Court observed that the Hague Convention is codified as the International Child Abduction Remedies Act (22 USC § 9001). A petitioner must demonstrate by a preponderance of the evidence: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” (Gitter v Gitter, 396 F3d 124, 130-131 [2d Cir 2005].) To determine habitual residence, the court must also “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time” that they had the same interests. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes 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. (Matter of E.Z., 2021 WL 5106637, 2021 US Dist LEXIS 212008.) The “habitual residence” determination is “fact-driven,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” (Monasky v Taglieri, 589 US —, —, 140 S Ct 719, 727  [internal quotation marks omitted].) The residence must have the “quality of being habitual.” (589 US at —, 140 S Ct at 729) The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. (589 US at — n 3, 140 S Ct at 727 n 3.) Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021.The facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied. Ms. C.’s application for dismissal was granted to that extent.