Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. N. Y., 2023)
In Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. New York, 2023) the Court denied Angelo Lomanto’s petition for the return to Spain of R.A.L. and S.M.L., his children with Respondent Anthonia Aduke Agbelusi. The Court concluded that Agbelusi had successfully proven that the children were now settled, that the elder child was sufficiently mature and objected to return, and that the children should not be separated.
On August 26, 2022, Lomanto filed this action in the United States District Court for the Eastern District of New York. The Eastern District transferred this case to the Southern District on August 29, 2022. Agbelusi conceded Lomanto’s prima facie case, and t this case concerned only the defenses to the presumption in favor of return under the Convention. Agbelusi had the burden of establishing these defenses. § 9003(e)(2). Absent a finding that an exception applies, a child determined to be wrongfully removed or retained must be “promptly returned” to the child’s country of habitual residence. § 9001(a)(4).
The Court found out that R.A.L. and S.M.L. were both evaluated by Dr. Edward Fernandez, a licensed clinical psychologist. Dr. Fernandez’s assessment, after meeting with R.A.L. and S.M.L., was that R.A.L. was of “sufficient age and maturity to have his opinion considered,” that he displayed “psychological maturity and attunement to his current circumstances,” and that he “is capable of making logical decisions.” S.M.L., while of “sufficient age-related maturity,” was, by contrast, at an age where he was highly influenced by his surroundings rather than forming his own opinions. Dr. Fernandez also observed the close relationship between the two children and noted R.A.L.’s maturity and responsibility when it came to caring for his younger brother. The Court also met with both R.A.L. and S.M.L. in camera, accompanied by their court-appointed attorneys. The Court conducted this interview without Agbelusi, Lomanto, or their counsel present, and the transcript was sealed. Both parties submitted proposed questions for the interview. S.M.L., age six, was rambunctious, energetic, and guileless. His comments were overwhelmingly positive toward everyone — including his teachers, father, mother, brother, grandmother, and the Court. Given his age and attention span, the interview with S.M.L. was relatively brief. The conversation with R.A.L., age fourteen, lasted about an hour. The Court found R.A.L. to be mature, intelligent, thoughtful, engaging, and reasonable. He expressed himself clearly, honestly, and with impressive nuance and grace toward both of his parents. Based on this conversation and the conclusions of Dr. Fernandez, the Court found that R.A.L. was sufficiently mature and independent to justify crediting R.A.L.’s views. During the conversation with R.A.L., R.A.L. expressed his objection to returning to Spain and his strong desire to stay in New York. In particular, he expressed a strong objection to being parted from his mother and his life, friends, and school in New York, despite acknowledging that he missed some creature comforts like his video game set-up in Spain. R.A.L. also expressed that he did not wish to be permanently parted from either parent. R.A.L. was very patient and conscientious with his younger brother. The two were very close, and due to their affect during the interview with both children, as well as the evidence at trial, the Court found it would cause significant damage to separate the two children.
The Court noted that the now-settled defense is available only when the proceedings were commenced more than a year after the date of the wrongful removal or retention of the child. R.A.L. informed his father on August 24, 2021, that he would be staying in New York and enrolling in school. Agbelusi told Lomanto the same late on August 24, 2021, when she was in New York, which was early August 25, 2021, in Spain. On August 25, 2021, Lomanto filed a police report in Spain stating that his children had been kidnapped “yesterday” and giving August 24, 2021, as the date of disappearance. In any event, this action was filed on August 26, 2022. Ultimately, whether the date of retention was August 24 or August 25 was legally irrelevant because either way this action was filed more than “a year” after the wrongful retention. The now-settled defense was available under the facts of this case as a matter of law. Although the Hague Convention does not define the phrase “settled,” the Second Circuit has explained that the term “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano v. Alvarez, 697 F.3d at 56. Although courts “may consider any factor relevant to a child’s connection to his living arrangement,” the Second Circuit has explained that courts should “generally” consider: (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 daycare 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. Agbelusi demonstrated by a preponderance of the evidence several factors weighed strongly in favor of finding R.A.L. and S.M.L. settled, including their ages, academic performance and improvement, extracurricular activities, peer social relationships, and family relationships. In light of the strength of her showing on these factors, the Court concluded that R.A.L. and S.M.L. were settled such that repatriating them “would be disruptive with likely harmful effects.” In re Lozano, 809 F. Supp. 2d at 230.
The Court explained
that Article 13 of the Hague Convention also 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 its views.” Hague Convention, Art. 13. According
to the Explanatory Report, under this provision a child’s objection may be
conclusive: [T]he Convention also provides that the child’s views concerning
the essential question of its return or retention may be conclusive, provided
it has, according to the competent authorities, attained an age and degree of
maturity sufficient for its views to be taken into account...the fact must be
acknowledged that it would be very difficult to accept that a child of, for
example, fifteen years of age, should be returned against its will. Pérez–Vera
Report ¶ 30; see also Blondin v.
Dubois,
238 F. 3d at 166. Based on its interview with R.A.L. and
S.M.L., and the expert evaluation of Dr. Fernandez, the Court found that R.A.L.
was of sufficient age and maturity to take account of his views. S.M.L., by
contrast, was not of sufficient age and maturity to qualify for this defense.
However, the Court concluded that separation of R.A.L. and S.M.L. would cause
significant hardship and psychological harm, and ought to be avoided at all
costs. “Courts in this Circuit have frequently declined to separate siblings,
finding that the sibling relationship should be protected even if only one of
the children can properly raise an affirmative defense under the Hague
Convention.” Ermini v.
Vittori,
No. 12 Civ. 6100, 2013 WL 1703590, at *17 (S.D.N.Y. Apr. 19, 2013), aff’d as amended, 758 F.3d 153 (2d
Cir. 2014). R.A.L. objected to being returned to Spain.
The articulation of his reasoning was rational, logical, and clear. The Court was
also persuaded that his objection was the product of his own considered and
independent thinking, rather than a product of “undue influence” by his mother.
This defense independently justified the denial of the Petition. The Court found
by a preponderance of the evidence that R.A.L. and S.M.L. were settled in the
United States, and that R.A.L. was of sufficient age and maturity that the
Court may consider his objection to return. Lomanto’s petition for the
return of R.A.L. and S.M.L. was denied.
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