Tereshchenko v. Karimi, 2024 WL 80427( S.D. New York.2024) - [Ukraine] [Petition for return of children to Father in France Granted]

 In Tereshchenko v. Karimi, 2024 WL 80427( S.D. New York.2024) the petition filed by Roman Tereshchenko for the return of the children to their Father to reside in his home in France was granted.  Tereshchenko was the father of M.T. and K.T., who were habitual residents of Ukraine before Russia invaded Ukraine on February 24, 2022. They were born, respectively, on March 27, 2016, and June 3, 2017. They were ages seven and six. Their parents, both of whom were citizens of Ukraine, were respondent Yasamin Karimi (“Karimi”) and petitioner Tereshchenko. M.T. was born in Kyiv, Ukraine; K.T. was born in Broward County, Florida. The parents married in Odesa, Ukraine, on April 22, 2017, after the birth of their first child, and divorced the following year, on November 16, 2018. At the time of their marriage, Tereshchenko was 41 years of age and an established, well-to-do international businessman. He frequently traveled internationally, and his office was located in Dubai at the time of the hearing. Karimi was 24 years old when they married. After their divorce, they negotiated a custody agreement (the “Custody Agreement”), which they executed on May 29, 2019. They agreed that the children would reside with the Mother and maternal grandmother in an apartment in Odesa, which Tereshchenko would purchase. The Agreement provided that the children would reside with their Father for at least seven days per month and that the Father could “freely visit” the children and participate in their upbringing. Beginning in early 2019, Karimi began to travel for extensive periods, spending more than half of her time away from Odesa. She moved to London at one point to earn a Masters Degree in “magazine journalism”. Eventually, the children came to live with their Father and his mother. The parents began to file criminal complaints against each other and claims for custody. On October 11, 2021, the Children’s Service of Odesa City Council determined that the children were to reside with their Father in Odesa (“Guardianship Ruling”). Shortly after the ruling had awarded custody to the children’s Father, the Mother abducted the children. It would be almost two years before the Father located them in New York and filed the petition.

 

After Russia invaded Ukraine, Karimi telephoned Tereshchenko and sought access to the children’s travel documents so that she could take them out of the country. At that time, Tereshchenko was out of the country. He agreed to provide her with those documents, which were delivered by his representative but asked that the children be brought to him in Dubai, where he had a home. That did not happen. Using the travel documents provided by Tereshchenko, Karimi took the children to Poland on March 2, 2022, and then to the Netherlands and Spain. On July 11, 2022, she brought them to the United States as part of the U.S. Department of Homeland Security’s “Uniting for Ukraine” program. At no point after she arrived in the United States did Karimi contact Tereshchenko or take any steps to notify him that she had taken the children to the United States or to advise him where the children could be found.

In March 2023 Tereshchenko located an address for Karimi in New York City. This petition was filed on March 8, 2023.

 

On November 21, 2023, the District Court of Odesa issued its decision, ruling that the children are to reside with Tereshchenko (“District Court Decision”). In a lengthy opinion, the District Court found that Karimi had repeatedly violated the terms of the Custody Agreement, had evaded her responsibilities, and had been frequently absent due to her foreign travels. Although Karimi and Tereshchenko had agreed to abide by the decision of the District Court, Karimi changed counsel after the District Court ruled against her and continues to oppose the petition.  

After the hearing, the Court granted the petition 

 

The parties agreed that the children were habitual residents of Ukraine. They also agreed that the law of Ukraine governs the rights of custody over the children and that under that nation’s Family Code, both parents have the right to participate in the decisions regarding where the children reside and the major decisions regarding their lives, such as their medical care and education. These rights survive a divorce. Neither parent may impede the other’s communication with the child, provided that the parent’s involvement with the child does not impair the child’s development. These parental rights exist even when the child resides with just one parent.  

Under Ukrainian law, parents may agree on the residence of a child without court approval. If they are no longer in agreement or are unable to reach a new agreement, either parent may apply to the local Guardianship Body or court to resolve the dispute over the child’s residence. If an application is made to the court, then in the normal course, any prior application to the Guardianship Body is stayed and the court submits its own request to the Guardianship Body for a recommendation. If the court rejects that recommendation, it must explain its reasons for doing so. Any court ruling is stayed pending appeal.

 

The petitioner carried his burden of showing a breach of the Convention by the respondent. Karimi has interfered with Tereshchenko’s rights of custody since November 2021, when she abducted the children and took them to an undisclosed location. While Tereshchenko cooperated with the Karimi to allow the children to leave Ukraine when the Russian war with Ukraine made it unsafe for them to remain in Odesa, he has shown that thereafter Karimi prevented him from exercising his rights under the Ukrainian Family Code to be involved in decisions regarding the children’s residence, medical care, and education and to communicate with his children. She did not take them to Dubai, as he had requested, and unilaterally made the decision regarding where the children would be taken. She did not inform him that she had taken them to the United States. The petitioner has shown that Karimi’s actions in abducting the children and taking them to locations that she did not disclose to the petitioner, including to the United States, have interfered with his rights of custody under the Ukrainian Family Code. That is sufficient to show the wrongful removal and retention required by the Hague Convention.

 

Tereshchenko offered persuasive evidence that under the law of Ukraine, the Custody Agreement lost all force once the parties were no longer willing to abide by it. Thereafter, both parties made applications to Ukrainian authorities to gain custody of the children. The petitioner has shown as well that the Guardianship Ruling went into effect at the time it was issued and has remained in effect since the District Court Ruling accepted it. Thus, since October 2021, Ukrainian authorities have formally awarded custody of the children to their Father. But, as already described, because Tereshchenko has shown that Karimi violated his rights of custody under the Ukrainian Family Code, the fact that she has also refused to comply with the Guardianship Ruling is immaterial to the decision rendered on this petition.

 

The respondent’s chief defense has been that a return to Ukraine would pose a grave risk to the children. She must show by clear and convincing evidence that this defense, which is available under Article 13b of the Hague Convention, applies. 22 U.S.C. § 9003(e)(2)(A). . A grave risk of harm under Article 13(b) arises in two situations:(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

Id. (citation omitted). The grave risk of harm must be particular to the child, not just a general undesirable condition. Friedrich v. Friedrich, 78 F.3d 1060, 1067-69 (6th Cir. 1996). The U.S. State Department instructs that the grave risk of harm or “intolerable situation” is not intended to encompass a return to a home where living conditions are less than ideal or unlike the living conditions in the country to which the children have been brought. Public Notice 957, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986). The respondent failed to show that a return of the children to Ukraine would involve the grave risk of harm contemplated by Article 13(b). Tereshchenko represented that, if required by the Court, he would move with the children to a location in western Ukraine that is outside the zone of combat and danger. This offer is sufficient to defeat the Article 13(b) defense. In 2022, after Russia had begun its war with Ukraine, a court in the United Kingdom ordered the return of a child to a town in western Ukraine, finding that the risk of armed conflict was lower than the Article 13b “grave risk of harm” threshold. Q v. R, (2022) EWHC 2961 (Fam) at ¶¶ 56-66. In any event, as further described below, the Court will not require Tereshchenko to return to Ukraine.

 

Making essentially the same argument about the danger posed by a return to Ukraine during a period of war, the respondent relies next on Article 20 of the Hague Convention.. For the reasons just explained, the return of the children to Western Ukraine would not constitute that rare occasion when the return of the children to the Father’s custody would shock the conscience. Therefore, this defense failed.

 

Respondent relies as well on Article 13a of the Hague Convention, which provides a defense of consent and acquiescence. Karimi argues that the petitioner consented to her removing the children from Ukraine. She points to his assistance in providing her with their travel documents so she could take the children out of the country after the war broke out. This consent was narrow. Karimi has failed to show that Tereshchenko consented at any time to her taking the children to undisclosed locations, including the United States, or interfering with his access to them.

Finally, the respondent argued that the petitioner may only seek the return of his children to Ukraine, and not to France. This argument failed. When a petitioner has succeeded in his claim, it may be appropriate to restore the children to him at his current residence even when that residence is not in the country that was the children’s habitual residence. In the circumstances that exist here, that is appropriate. The purpose of the Convention, as stated in the preamble, is to return a child to their country of habitual residence for the resolution of any custody dispute. None of these cases, however, addressed whether a court, in ordering the return of a child to a parent, may order that the return be to a parent’s current abode in a third country. And, apart from the Preamble, no other provision of the Convention refers to the return of the child to the state where they were once habitually resident. Article 12, which requires the “forthwith” return of the child, requires only that the authority granting the petition order “the return” of the child. Hague Convention, Art. 12. A decision issued recently in the United Kingdom has addressed this very issue and opined that the Hague Convention permits a court, in the exercise of its discretion, to return a child to a parent now living in a third state. In Re B (A Child), (2020) EWCA Civ. 1187, at ¶ 104. In In Re B, Lord Moylan explained that the Hague Convention did not accept “a proposal to the effect that the return of the child should always be to the State of its habitual residence.” Id. at ¶ 108 (citing the Perez-Vera Report). Lord Moylan further opined that “to confine the terms of Article 12 to permitting a return only to the state of habitual residence at the relevant date would not promote the objectives of the [Hague Convention].” Id. at ¶ 110.

 

Where a petitioner no longer lives in what was once the child’s habitual residence, it makes little sense, and is contrary to the protections of the child from the harmful effects of abduction, to order the return of the child to a country in which the petitioner no longer lives. Here, Ukraine’s current laws provide additional support for this outcome. They allow a relative to unilaterally remove a child from Ukraine. In response to the war with Russia, the Executive Order of March 21, 2022 states that a child under the age of 16, accompanied by “one of [their] parents, grandparents, brother, sister, stepmother or stepfather” or another person authorized by one of the parents in a written statement certified by the Guardianship Body, may leave Ukraine upon presentation of documents containing information about the person accompanying the child. On Approval of the Rules of Crossing the State Border by Citizens of Ukraine, Ministry of Social Policy of Ukraine. The petitioner seeks to relocate the children to his home in France. Even if the Court required the children to be taken to him in Ukraine, Ukrainian law permits him, because of the exigencies of the war, to take them immediately to live with him in France. It would elevate form over substance, in these circumstances, to require him to take the children into Ukraine before he could take them to his home in France. It would also add to the children’s trauma. That trauma can and should be avoided. 

Recent Hague Convention District Court Cases - Harvey v Means, 2024 WL 324980 (W.D. Washington, 2024) [Scotland][Petition granted][Coercion not established][Grave risk of harm not established] .

 [Scotland][Petition granted][Coercion not established][Grave risk of harm not established]

In Harvey v Means, 2024 WL 324980 (W.D. Washington, 2024) the Court granted Petitioner Dale Harvey’s petition for the return of his children, Z.H.M. and E.H.M., to Scotland.  Means and Harvey were the parents of Z.H.M. and E.H.M., ages six and four. Harvey was a citizen of Scotland and Means was a United States citizen, born and raised in Washington state. Her parents and extended family continue to reside in the Seattle area. Means and Harvey married on April 12, 2015, in Seattle, Washington. From the early days of their marriage, Harvey and Means experienced troubles in their relationship. In 2017, Harvey and Means moved from Brighton, England to Glasgow, Scotland, and purchased a flat. Later that year, their eldest daughter was born. Their youngest daughter was born two years later in 2019. Means and Harvey split primary caretaking responsibility evenly. Until the events giving rise to the Petition, the children resided at all times in Glasgow, Scotland, where they attended daycare and nursery. In 2019, Means began expressing her desire to relocate to the U.S. to be closer to her family and friends. Harvey objected to resettling in another country. In February 2020, Means initiated custody proceedings in Scotland, seeking to relocate the children to Washington. Harvey opposed the request, but due to COVID-19 lockdowns, the Scottish court delayed a contested hearing on the matter.  In April 2020, during the custody proceedings, Means accused Harvey of sexually abusing Z.H.M. On April 7, 2020, Means contacted the National Society for the Prevention of Cruelty to Children (NSPCC). After receiving a referral from NSPCC, a Duty Social Worker, Scott Andrew McCabe, as well as Child Protection officers visited Harvey and Means’s home on April 8, 2020.  On April 9, 2020, a consultant pediatrician conducted a medical examination of Z.H.M. The pediatrician told McCabe there were no internal or external injuries and no signs of abuse. Means does not contest the pediatrician’s findings and conceded there was no physical evidence of sexual abuse. Means did not allege other occurrences of sexual abuse after or before April 2020. A couple of weeks later, Means walked in Z.H.M.’s bedroom to find her with Harvey not wearing pants or underwear. Means saw Harvey put something in his pocket and he said, “the last time you accused me of being a pedophile, you said you needed therapy.”  Harvey and Means’s relationship continued to deteriorate and they officially separated. In 2021, Z.H.M. told Means that she had taken a bath with Harvey. According to Harvey, this did not happen. It would have been logistically impossible given the size of their bath. On August 12, 2022, Sheriff Charles Lugton issued a judgment in which he denied Means permission to relocate with the children to Washington and awarded each parent 50 percent custody. He found Means made false sexual abuse allegations against Harvey. The judgment was later modified to prevent Means from removing the children from their current school and nursery and enrolling them elsewhere without Harvey’s permission. Means filed for divorce on April 28, 2023. On September 30, 2023, Means left Scotland with the children and moved to Seattle, Washington. At the time Means left with the children, Harvey was exercising his custodial rights. On November 8, 2023, Harvey filed a Petition for Return with this Court as well as a motion seeking an ex parte temporary restraining order transferring the children to his custody. In her sworn petition, Means stated that after her trip to Seattle with the children, she became “suicidal” when the children were with Harvey and she “knew [she] had to go home.” She left Scotland with the children to return to Seattle, knowing that doing so breached the Scottish custody order. She stated that if the children are forced to return to Scotland, “this holiday season will be the only one they ever spend in the US with their family and the last one they spend with me until adulthood.” She did not allege in the petition that the children will face abuse, sexual or otherwise if they are returned to Scotland.

The District Court found that Harvey established a prima facie case for the return of the children. Both children were born in Scotland and resided there exclusively until Means took them to the U.S. on September 30, 2023. At the hearing, Means argued that the children were born and remained in Scotland because of Harvey’s coercion. Means testified that she was unhappy in Glasgow and wanted to continue living in Brighton rather than move before Z.H.M.’s birth. Means also testified that she felt dependent on Harvey for her continued immigration status. Harvey testified he never threatened to revoke Means’s immigration status, and Means does not dispute this testimony. Means did not raise coercion as an issue in the Scottish court relocation proceedings. The Court found that Means’s claims about coercion lack credibility. The Court held that even if the Court accepted Means’s testimony as true, it failed to rise to the level of coercion because nothing suggested Means did not voluntarily move to and remain in Scotland with Harvey for the birth of their children. See Tsuruta v. Tsuruta, 76 F.4th 1107, 1110-11 (8th Cir. 2023) Moreover, coercion cannot be established simply because Harvey did not agree to allow Means to relocate to the United States with their children. See Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir. 2003) (finding a respondent’s “subsequent, post-move desire to return to the United States,...d[id] not change the legal conclusion that the habitual residence of the children changed[.]”). Means grew to dislike Glasgow as her marriage and mental health worsened, but a change of heart cannot override the clear conclusion that Scotland was the children’s habitual residence.

The District Court found that Means failed to establish the children will be at risk of grave danger if returned to Scotland. Means testified that the children would suffer harm if returned to Scotland because they would effectively lose their mother. She claimed she cannot return to Scotland because she felt suicidal there and when in Washington, she no longer experiences suicidal ideations. Means offered her medical records to argue this point. She also testified she would be unable to find employment or housing in Scotland and she could be subject to criminal prosecution for taking the children away in violation of the Scottish court order. The possible loss of access by a parent to the child—and vice versa—does not constitute a grave risk of harm per se under Article 13(b). Souratgar v. Lee, 720 F.3d 96, 106 (2d Cir. 2013); see also Charalambous v. Charalambous, 627 F.3d 462, 469 (1st Cir. 2010) (“[T]he impact of any loss of contact with the [parent] is something that must be resolved by the courts of the Children’s habitual residence.”). The Court found no unique harm posed by separating the children from Means beyond that “expected on taking a child away from one parent and passing the child to another.” See Nunez-Escudero, 58 F.3d at 377. As one Court observed, “[i]f the difficulty caused by such separation were deemed sufficient to satisfy the grave risk exception, the purposes of the Convention would be largely frustrated.” Aguilera v. De Lara, No. CV14-1209 PHX DGC, 2014 WL 3427548, at *5 (D. Ariz. July 15, 2014). It also found that the alleged abuse suffered by Means did not establish a grave danger to the children. Means also testified Harvey emotionally abused her during their marriage by surveilling her email account, physically blocking the door when she tried to take one of her daughters to lunch one time, and threatening to leave her. A grave risk to the respondent parent, however, does not automatically qualify as a grave risk to the children. See Charalambous, 627 F.3d at 468 (finding that the respondent parent “failed to draw a connection establishing, by clear and convincing evidence, that any risk to her constituted a grave risk to the children” even though she had endured some verbal and emotional abuse as well as one incident of physical abuse given that the children did not witness it). Courts may find a grave risk of harm if a respondent demonstrates “[s]pousal violence ...particularly when it occurs in the presence of the child.” Colchester, 16 F.4th at 718 (listing authority). Means and Harvey had a tumultuous marriage, but it was not until their divorce proceedings that Means would begin to characterize Harvey’s conduct as emotionally abusive. And while Means claims that Harvey emotionally abused her, she did not allege that he emotionally abused the children. Means could not link the conduct she allegedly suffered to any potential risk posed to the children. Whatever the dynamic was between Means and Harvey, it appears limited to their private interactions, and now that they are separated, the risk of the children suffering as collateral damage to their fighting is greatly diminished.

 

Means raised the same allegation she raised in the Scottish court— that Harvey sexually abused Z.H.M. in April 2020 based on blood found in her underwear. Means also testified about two other incidents involving Harvey and the children that gave her pause. Means admitted, however, that she has no physical evidence of sexual abuse and that she does not suspect Harvey sexually abused the children on any other occasion. Harvey offered a plausible alternative explanation for the blood in Z.H.M.’s underwear. A doctor examined Z.H.M. two days after the injury and found no external or internal signs of sexual abuse. A social worker also investigated and found no abuse. The Scottish court dismissed these allegations as false. The Court found Means’s testimony less than credible and that the evidence—or her speculation about the cause of the blood—does not meet the clear and convincing standard. Means admitted that she did not have strong evidence to support her sexual abuse allegation.