In Tereshchenko v. Karimi, --- F.4th ---- 2024 WL 2202151 (2d Cir., 2024) in February 2022, immediately after Russia invaded Ukraine, Tereshchenko agreed to have Karimi remove their children from Ukraine, their place of habitual residence, for safety reasons. In giving that consent, he requested that they be brought to him in Dubai, where he had a home and an office. Karimi ignored that request and took the children to locations that she did not disclose to Tereshchenko, including in July 2022 to the United States. Following a hearing on January 3, 2024, the District Court (Cote, J.) granted Tereshchenko’s petition and ordered the children to return to Tereshchenko at his current residence in France.
The Second Circuit affirmed the District Court’s ruling insofar as it exercised subject matter jurisdiction over Tereshchenko’s petition; concluded that Tereshchenko proved his prima facie case of wrongful removal or retention under Article 3 of the Convention; excluded Karimi’s evidence related to the “now settled” defense; and directed Karimi to return the children to Tereshchenko at his residence in France. Although it further concluded that the District Court erred in determining under Article 13(b) that no grave risk of harm would result from returning the children to western Ukraine, it also decided that the District Court correctly granted the petition and entered a return order in Tereshchenko’s favor. The order it entered was not adequately tailored to preserve the authority of the Ukrainian courts over the parties’ custody dispute and to avoid effecting an impermissible custody order. The order was affirmed in part and the case was remanded to allow the District Court to amend its order returning the children to Tereshchenko in France by adding conditions designed to serve this important purpose.
Tereshchenko and Karimi married in Odesa, Ukraine, on April 22, 2017. They were the parents of M.T. and K.T. M.T. was born on March 27, 2016, in Kyiv, Ukraine, and was a citizen of Ukraine; K.T. was born on June 3, 2017, in Hollywood, Florida, and was a citizen of Ukraine and of the United States. The parties divorced on November 16, 2018. In January 2019, Karimi began to travel for extended periods, spending more than half of her time away from Odesa, where she was then residing with the children. Tereshchenko, while apparently based in Odesa, frequently traveled internationally for work and maintains an office and residence in Dubai. In May 2019, the parties executed a custody agreement under which the children would reside with Karimi, and Tereshchenko would “freely visit” with them and participate in their upbringing. Some months later, in the fall of 2019, Karimi moved to London to seek a master’s degree in journalism from the City, University of London, leaving the children with her mother in Odesa. Beginning in June 2020, however, the children began to reside primarily with Tereshchenko. By November 2020, the parties had begun a legal contest over their custody arrangements. Tereshchenko sought to modify the May 2019 agreement and to have the children reside primarily with him; Karimi, for her part, sought sole custody. In October 2021, the Children’s Service of Odesa City Council (the “Guardianship Body”) determined that the children would reside with Tereshchenko in Odesa. Shortly after, on November 22, 2021, when Tereshchenko was undergoing medical treatment abroad and the children were staying at his home under the care of their paternal grandmother and nannies, Karimi came to Tereshchenko’s home and took the children, promising that she would return them the following morning. When she failed to do so, Tereshchenko reported the abduction to the police, and the children were placed on a “wanted list.” Tereshchenko was unable to visit his children again until after he located Karimi and the children in New York City and filed this proceeding.
The children were with Karimi at an undisclosed location in Odesa when, on February 24, 2022, Russia invaded Ukraine. On February 25, Karimi contacted Tereshchenko in Dubai by phone and requested that he have the children’s passports delivered to her so that she and the children could quickly leave the country. Tereshchenko agreed, but he also asked that the children be brought from Ukraine to him in Dubai. According to Tereshchenko, he asked Karimi to notify him when they reached the intermediate stop of Moldova. The plan was that he would then purchase plane tickets for Karimi and the children to travel to Dubai. That did not occur. Instead, Karimi left Ukraine with the children and, on March 2, took the children to Poland. From there, the three traveled to the Netherlands and, eventually, to La Manga, Spain, where they stayed for about three months. On July 11 of that year, Karimi brought the children to the United States under the auspices of the U.S. Department of Homeland Security’s “Uniting for Ukraine” program. The humanitarian parole status established by that program is set to expire a few months from now, in July 2024. At no point did Karimi advise Tereshchenko that she had taken the children overseas, to the United States. Tereshchenko began to hunt for the children. He moved to France in around May 2022. He has been living in a rented three-bedroom home in Antibes since October 2022. Tereshchenko eventually was able to determine that Karimi and the children were likely living in Manhattan. Tereshchenko v. Karimi, 2024 WL 195547, at *1 (S.D.N.Y. Jan. 18, 2024). On March 8, 2023, he filed this petition in the Southern District of New York.
On November 21, the Ukrainian Court ruled, as had the Guardianship Body, that the children were to reside with Tereshchenko, and that they were to do so at a specific address in Odesa. Karimi filed an appeal. That appeal stayed both that decision and the decision of the Guardianship Body. On December 6, the District Court denied Karimi’s motion to dismiss for want of jurisdiction. See Tereshchenko v. Karimi, 2023 WL 8452224, *1–2 (S.D.N.Y. Dec. 6, 2023). On Friday, December 29, Tereshchenko moved in limine to exclude certain evidence from a scheduled January hearing. His motion focused on all proposed exhibits relating to what he inferred would be a new assertion by Karimi that the children were “now settled” in the United States, a defense under Article 12 of the Convention. Karimi opposed it on January 1, 2024. The January 3 hearing was convened as scheduled. The court first ruled on the motion in limine. It excluded the proposed evidence and decided both that Karimi had forfeited the “now settled” defense and that the defense failed on the merits. The court heard the cross-examination of five witnesses, including Karimi and Tereshchenko, each of whom had presented direct testimony by affidavit before the hearing. At the end of the day, the court orally granted Tereshchenko’s petition and advised that its written decision would soon follow. On January 8, the District Court issued its written Opinion and Order. See Tereshchenko, 2024 WL 80427. The court began by noting the parties’ agreement that the children are “habitual residents” of Ukraine within the meaning of the Convention, and that the Ukrainian Family Code governs the parents’ rights vis à vis their children. That law affords each parent the right to have access to the children and to participate in major decisions about the children’s lives. These decisions expressly include those regarding where the children will reside and others such as those concerning their medical care and education. The established law of Ukraine thus made it unnecessary, the court reasoned, for it to resolve the parties’ dispute regarding whether Karimi’s actions violated Tereshchenko’s more specific custody rights under either or both of the October 2021 Guardianship Body ruling or the November 2023 Ukrainian Court decision. No more was needed because Karimi’s actions in taking the children to the United States and retaining them there without notice to him undeniably interfered with Tereshchenko’s rights under the Ukrainian Family Code. Further, this history sufficed to show the wrongful retention required by the Convention as a predicate to relief.
The court then turned to the affirmative defenses advanced by Karimi. It concluded first that Karimi failed to show by clear and convincing evidence that the return of the children to western Ukraine, if ordered by the court, would result in a grave risk of harm referred to by Article 13(b). Id. at *6. Second, it ruled that Karimi had forfeited the “now-settled” defense. In any event, it found, the defense failed “on the merits”: Karimi was not entitled to assert the defense under Article 12 because Tereshchenko could not have known by March 8, 2022, a year before he filed the petition, that Karimi would not bring the children to Dubai and “would instead continue to deprive him of access to them.” Third, it found that Karimi failed to show by a preponderance that Tereshchenko consented to her taking the children to undisclosed locations including the United States, or to her interfering with his access to the children. This finding negated Karimi’s “consent” defense under Article 13(a). Finally, it determined that, under all the circumstances, it was appropriate and lawful for the court to return the children to Tereshchenko at his current residence in France even though France is not the children’s country of habitual residence. The court thus simply ordered the “return of the children to [Tereshchenko] to reside in his home in France.”
On January 18, the District Court entered judgment on its January 8 Opinion and Order, permitting this appeal. See 28 U.S.C. § 1291. On appeal, Karimi argued that (1) this case does not arise under the Convention and therefore the District Court lacked subject matter jurisdiction. She also contends that the District Court: (2) abused its discretion in excluding evidence of the children’s settlement in the United States; (3) erroneously concluded that returning the children to western Ukraine would not expose them to a grave risk of harm under Article 13(b); (4) lacked the power under the Convention to send the children to a country that is not their place of habitual residence; and (5) deprived her of a meaningful opportunity to be heard.
Karimi first argued that the District Court lacked subject matter jurisdiction over Tereshchenko’s petition. It was apparent, that argument had a false premise: consent (or lack of it) is not a jurisdictional requirement to a petition brought under the Convention. Neither the Convention’s jurisdictional provisions nor our domestic jurisdictional law requires that the removal be wrongful or without consent. While consent and wrongful removal bear on the merits of a petition under the Convention, those issues have nothing to do with jurisdiction, whether treaty or domestic. Accordingly, the District Court had subject matter jurisdiction over Tereshchenko’s petition. Karimi’s arguments went not to a court’s subject matter jurisdiction but to the merits of Tereshchenko’s petition. Considering these arguments on the merits, they failed.
The Second Circuit held that the District Court did not abuse its discretion in excluding evidence related to the “now settled” defense. Karimi did not raise a “now settled” defense in her Answer. The District Court did not rule “in an arbitrary and irrational fashion” when it granted the motion in limine and concluded that Tereshchenko would have been prejudiced had he been required to respond to Karimi’s “now-settled” defense on the pre-set timeline—a timeline that had already been unnecessarily protracted.
The Court held that the District Court erred in deciding that returning the children to Ukraine—including to western Ukraine—would not expose the children to “a grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.”, A “grave risk of harm” defense that meets the Article 13(b) standard may arise “where returning the child means sending him to a zone of war, famine, or disease.” Souratgar, 720 F.3d at 103. Based on what record evidence does exist—and mindful of the rapidly evolving nature of the military conflict taking place—it declined to adopt the District Court’s stated determination that the children faced no “grave risk of harm” if returned to Ukraine with Tereshchenko. In the face of Tereshchenko’s testimony that life in western Ukraine was dangerous and evidence establishing that Russia was bombing western Ukrainian cities, the District Court clearly erred in concluding that returning the children to L’viv would not expose them to a grave risk of harm. Nevertheless, this error did not require reversal.
The Second Circuit reached the same conclusion as did the District Court and affirmed its grant of Tereshchenko’s petition. It did so because the Convention permits—as a temporary ameliorative measure—a court in certain rare circumstances to return a child to a petitioner who is not himself in the place of habitual residence, but temporarily in a third country. The ongoing war in Ukraine simply precluded entry of the ordinary Hague Convention order. Even so, the District Court’s order returning the children to Tereshchenko in France must be tailored to secure the continued authority of the Ukrainian courts over the children and the parents’ respective custody rights. Absent such tailoring, the order had the effect of an impermissible custody determination. Accordingly, it remanded remand to allow expeditious amendment of the order in line with these fundamental goals. The court’s order was too open-ended, however, and in effect granted Tereshchenko permanent custody over the children in France. See Tereshchenko, 2024 WL 80427, at *10 (ordering the children returned to Tereshchenko to have the children physically “reside in his home in France”). This is a right that he did not previously enjoy. The Ukrainian executive order issued on March 21, 2022, in response to the war with Russia, grants relatives generally the equal right to unilaterally remove children from the country. But it does not purport to give Tereshchenko as an individual custody rights over the children in Ukraine or anywhere else. Although Tereshchenko has prevailed thus far before the Guardianship Body and the Ukrainian Court in his search for a custody ruling favorable to him, those decisions are stayed as a matter of Ukrainian law pending appeal. In any event, neither decision awarded Tereshchenko a right to have the children reside with him in France. Indeed, the Ukrainian Court decision grants Tereshchenko custody of the children at a particular address in Ukraine. In this regard, the District Court’s order imposes no limitation as to the “time and scope” of the children’s residence in France, or on other aspects of his rights to have them reside with him. Most crucially, it contains no conditions designed to preserve the authority of the Ukrainian Courts while the children stay with Tereshchenko in France, safe from the war in Ukraine. Accordingly, we think the order needs further shaping to avoid having the practical effect of granting Tereshchenko physical custody over the children in France. Such additional terms can be shaped and imposed expeditiously and without further fact-finding. It directed that on remand, the District Court should fashion a limited and temporary order that directs the children to stay with Tereshchenko in France, commits Tereshchenko to making the children available for the Ukrainian custody proceedings as required by those courts, and directs the parties to abide by the final custody determination of those courts.
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