Tereshchenko v. Karimi, 2023 WL 8452224 (S.D. New York, 2023) [Ukraine][Subject matter jurisdiction] [Motion to dismiss denied]

In Tereshchenko v. Karimi, 2023 WL 8452224 (S.D. New York, 2023) Yasamin Karimi and her children fled Ukraine in early 2022, following Russia’s invasion. The children’s father, Roman Tereshchenko petitioned the Court under the Hague Convention for the return of his two minor children. Respondent moved to dismiss the petition pursuant to Rule 12(b)(1), Fed. R. Civ. P., on the ground that this Court lacks subject matter jurisdiction. The Court denied the motion.

 Tereshchenko and Karimi, both Ukrainian citizens, were married on April 22, 2017, in Odessa, Ukraine. The parties share two minor children, K.T. and M.T. On November 16, 2018, the parties divorced. On May 29, 2019, Tereshchenko and Karimi executed an agreement concerning their respective custody rights. Under the Custody Agreement, the Children were to reside with Respondent in Odessa, and Petitioner maintains certain visitation rights. There are ongoing custody proceedings in Ukraine, where Tereshchenko and Karimi are both seeking to modify provisions of the Custody Agreement. On February 24, 2022, Russia invaded Ukraine. In early March, Karimi fled Ukraine with the Children. In July, Karimi and the Children ultimately made their way to the United States where they were granted humanitarian parolee status. Karimi and the Children have remained in the United States since July 2022. Tereshchenko has been residing in France since May 2022, where he asserts he has established a primary residence.

 On March 8, 2023, Tereshchenko filed the petition asserting that Karimi wrongfully removed the Children from Ukraine. Tereshchenko seeks the Children’s return to him in France. Respondent moves to dismiss the petition pursuant to Fed. R. Civ. P. 12(b)(1), which requires the Court to dismiss an action for lack of subject matter jurisdiction if the Court determines that it lacks the constitutional or statutory power to adjudicate the case. When a Rule 12(b)(1) motion is made solely based on the allegations in the pleading, the “task of the district court is to determine whether the [p]leading alleges facts that affirmatively and plausibly suggest” that subject-matter jurisdiction exists. Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (citation omitted). Courts must be careful, however, not to conflate “federal-court ‘subject-matter’ jurisdiction over a controversy[ ] and the essential ingredients of a federal claim for relief.” Green v. Dep’t of Educ. of N.Y., 16 F.4th 1070, 1076 (2d Cir. 2021). To resolve whether an issue goes to the merits or subject matter jurisdiction, the Court must look to the language of the statute to determine whether Congress intended “that a threshold limitation on a statute’s scope shall count as jurisdictional.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006).

 The district court held that Karimi conflated jurisdiction with the merits of Tereshchenko’s petition for the Children’s return. ICARA confers “concurrent original jurisdiction of actions arising under the Convention” on “[t]he courts of the States and the United States district courts.” 22 U.S.C. § 9003(a). A petition for the return of a child is properly heard by “any court which has jurisdiction ... in the place where the child is located at the time the petition is filed.” Id. § 9003(b). The Children were residing within this district at the time the petition was filed, and thus § 9003 confers subject matter jurisdiction upon this Court. Karimi made four arguments in support of her assertion that this Court lacked subject matter jurisdiction over the petition. Three of those contentions related to an element of proof required either of the Petitioner who sought the Children’s return or of the Respondent who opposed that return. Those contentions do not, however, relate to the Court’s power to adjudicate the merits. The fourth argument -- that Petitioner may not seek the return of the Children to France, a state other than their habitual state of residence -- was similarly unavailing. That question concerns potential remedies available under the Hague Convention. It has no bearing on whether the Court has subject matter jurisdiction over the petition.

Guzzo v. Hansen, Not Reported in Fed. Rptr., 2023 WL 8433557 (Eighth Circuit, 2023)[Spain][Petition granted]

 

In  Guzzo v. Hansen,  Not Reported in Fed. Rptr., 2023 WL 8433557 (Eighth Circuit,  2023) Erica Hansen, a United States citizen, appealed the district court’s order that her son with Fabrizio Guzzo be returned to Spain. The Eighth Circuit affirmed. Hansen argued that the district court erred in determining the record did not support her defenses to returning her son to Spain. This court discerned no error in the district court’s conclusion that Hansen failed to establish her son would face a grave risk of harm if returned to Spain. See Acosta v. Acosta, 725 F.3d 868, 874 (8th Cir. 2013) (standard of review); see also Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (grave-risk inquiry only requires assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to habitual residence). The court discerned no error in the district court’s finding that, even if her son had attained sufficient maturity to consider his views, he did not express a particularized objection to living in Spain. See Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016) (standard of review); see also Dubikovskyy v. Goun, 54 F.4th 1042, 1048 (8th Cir. 2022) (child’s preference or generalized desire to remain in United States is insufficient, as child’s testimony must include particularized objections to returning to former country).