In Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024) Petitioner Mohammad Ali Dashti’s petition against respondent Brittany Elizabeth Long seeking the return of his minor child, ATD, to Greece was denied.
Dashti and Long began a relationship in 2018. The couple lived together in Athens, Greece. Long became pregnant with ATD in the spring of 2018. Petitioner and respondent became engaged in November of 2018. The couple never married. ATD was born in 2019. ATD is an American citizen. Long and ATD traveled to Florida in March 2020 and were unable to return to Greece until December. Following a family vacation around Europe in December 2022, respondent returned to the United States with ATD. Respondent returned to Athens, Greece with ATD in December 2023. On January 9, 2024, Long called a friend to notify them that she and ATD were being held in Greece by Dashti against their will. The police were called to couple’s apartment and petitioner was arrested. He was released on January 13, 2024. When petitioner returned home, he discovered that Long and ATD had left. Respondent and ATD live together and reside in the Northern District of New York.
The district court rejected Long’s argument that the Court lacks jurisdiction to hear Dashti’s petition because he lacked standing under the Hague Convention because he is not a citizen of a country whose accession to the Convention the United States has recognized. The Court agreed with Dashti that his citizenship is irrelevant to the disposition of his petition. The Hague Convention applies “to any child [younger than sixteen years of age] who was habitually resident in a Contracting State immediately before any breach of custody or access rights.” Convention Art. 3. In other words, the Convention does not contemplate the citizenship of the applicant, or the petitioner. Instead, the Convention applies “as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention Art. 35.
Long argued that Dashti has failed to state a valid claim for wrongful removal under ICARA. To be entitled to relief under ICARA, the petitioner must prove his prima facie case of wrongful removal by a preponderance of the evidence. In particular, a petitioner must prove that: “(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.” Tereshchenko, 102 F.4th at 127 (quoting Gitter, 396 F.3d at 130–31). Upon review, Dashti’s verified petition for the return of ATD was dismissed. Petitioner did not prove by a preponderance of the evidence that he had custody of ATD at the time of his removal. Petitioner asserted that under Article 1515 of the Greek Civil Code, he enjoyed custody of ATD as of March of 2019. a review of the provision of the Greek Civil Code cited by petitioner reveals that he did not have “custody” of ATD. Dashti is not a Greek citizen. He was an Iranian refugee residing in Greece. To the extent that Greek Civil Code was applicable given petitioner’s immigration status, Article 1515 did not vest petitioner with custody of ATD at the time of the child’s removal from Greece. Article 1515 of the Greek Civil Code provides that parental care of children born outside of wedlock belongs to the mother. The Code provides that the father may “partake” in parental care but can exercise it only “if the mother’s parental care has ceased or if the mother cannot exercise it on legal or factual grounds.” Dashti’s verified petition asserted that he and Long were not married when ATD was born. The petition further asserted that they have never been married. Petitioner did not assert that respondent ceased or became unable to exercise her parental care of ATD. Therefore, petitioner did not prove that he had “custody” of ATD under Greek law. Nor did he prove that his custody rights were breached when respondent removed ATD from Greece to the United States.
