In Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) Derek Redmond filed a petition for the return of his son ("JMR") to Ireland. Ms. Redmond was born in the United States on December 24, 1977. Although a United States citizen, Ms. Redmond testified that she also held citizenship in Ireland, where her father was born. Mr. Redmond was born in Ireland on June 14, 1975. In 1996, at the age of nineteen, Ms. Redmond went to Ireland and attended college. Around this time, she began an intimate relationship with Mr. Redmond. Mr. Redmond and Ms. Redmond never married. Ms. Redmond received her Irish Associates Degree in 1998, and continued to live in Ireland until November 2007. In 2006, the parties, who were living together, conceived a child. They agreed that the child should be born in the United States. On March 28, 2007, JMR was born in Blue Island, Illinois. Mr. Redmond was present for JMR's birth and was listed as the father on JMR's United States birth certificate. On April 8, 2007 the parties returned with JMR to their common residence in Ireland. From his birth until November 2007, JMR lived with both of his parents in Ireland. During this time, Mr. and Ms. Redmond shared the intent that JMR be raised in Ireland. By November 10, 2007, however, the relationship soured and Ms. Redmond "changed her intent as to where she wanted to live and where JMR should be raised. Respondent informed Petitioner personally of her intent to return permanently to the United States on November 10, 2007.". Mr. Redmond has never changed his intent that JMR be raised in Ireland. On
November 10, 2007, Ms. Redmond took JMR to Illinois. Ms. Redmond returned to Ireland with JMR in February 2008 for a period of about two months.
On March 25, 2008, Mr. Redmond filed a petition in the Irish district court seeking legal guardianship and custody of JMR and the matter was set for hearing on April 17, 2008. At the time he filed the petition, Ms. Redmond and JMR were in Ireland. After learning that they were planning to leave Ireland, Mr. Redmond obtained an ex parte Order preventing them from doing so. Pursuant to that Order, the Irish National Police stopped Ms. Redmond and JMR from departing Ireland on April 8, 2008. Mr. and Ms. Redmond were represented by counsel throughout the Irish proceedings. On April 17, 2008, Ms. Redmond attended the hearing and moved to set aside the April 8 Order. Her motion was denied and she appealed. On April 22, 2008, the appellate court ruled in her favor, setting aside the April 8 Order. The Order noted that Ms. Redmond had agreed to return to Ireland for a future hearing. On April 23, 2008, Ms. Redmond left with JMR for Illinois. On June 25, 2008, the Irish district court ruled that it did not have jurisdiction over Mr. Redmond's application for guardianship and custody because JMR had been removed to the United States. Mr. Redmond appealed and a hearing was set for July 29, 2008. On July 23, 2008, Mr. Redmond obtained an ex parte Order requiring Ms. Redmond to appear with JMR at the July 29 hearing. At the hearing, neither Ms. Redmond nor JMR appeared. The Irish appellate court found that it had jurisdiction to consider Mr. Redmond's application for guardianship and custody. Ms. Redmond subsequently appealed to the Irish High Court. The High Court heard the matter on November 18, 2008, and issued judgment on November 26, 2008, ruling against Ms. Redmond. Ms. Redmond conceded in January 2009 that the Irish courts had jurisdiction to hear Mr. Redmond's custody application.
In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to permanently relocate with her to the United States. On February 10, 2011, the Irish court, after a hearing, denied Ms. Redmond's application to relocate JMR to the United States and granted Mr. Redmond guardianship and joint custody of JMR. The Order directed Ms. Redmond not to make any application to any court outside the State in respect of JMR; not to remove JMR to a third country"; and "to live within a reasonable distance of Ballymurphy bearing in mind the Court's order that JMR
should attend Ballymurphy National School. The court also directed the parties to "share access to JMR on a 50/50 basis.
In response to the February 10 Order, Ms. Redmond requested leave of court to return to the United States for a short period in order to settle her affairs. The Irish court granted her request on the condition that she promise to: (1) return to Ireland with JMR no later than March 30, 2011; (2) not to apply to another court for custody; (3) terminate her employment in Illinois; (4) move to County Carlow, Ireland, and live within a reasonable distance of Ballymurphy National School; (5) have JMR attend Ballymurphy National School; (6) share custody with Mr. Redmond on an every-other-day basis; and (7) purchase a plane ticket for JMR's return trip to Ireland within seven days of her return to the United States. Ms. Redmond conceded that she made each of these promises under oath, and that she never intended to keep any of them. Ms. Redmond ailed to comply with all of the above sworn promises. Ms. Redmond admitted this at the June 8, 2012 evidentiary hearing.
On February 15, 2011, Ms. Redmond returned with JMR to Illinois. On March 23, 2011, she retained Illinois counsel and filed a petition for award of sole custody in the Circuit Court of Cook County, Illinois. Ms. Redmond did not return with JMR to Ireland on March 30, 2011. On May 10, 2011, the Irish court issued an Order requiring Ms. Redmond to produce JMR on June 30, 2011. The Irish court further declared that the retention of JMR in the United States after March 30, 2011 was wrongful within the meaning of Article 3 of the Convention. When Ms. Redmond failed to personally appear on June 30, the Irish court issued an Order directing that Ms. Redmond be attached and brought before the court to answer for her failure to comply with the promises that she made in February 2011. On July 27, 2011, the Circuit Court of Cook County denied Ms. Redmond's petition for custody, finding that the Irish courts had jurisdiction over the underlying custody issues. At the June 8, 2012 evidentiary hearing, Ms. Redmond testified to learning, that morning, of an outstanding warrant for her arrest in Ireland based on her failure to comply with the custody order.
The District Court observed that the Hague Convention does not define the term habitual residence," but rather regards it as a question of fact. Koch v. Koch. 450 F.3d 703, 712 (7th Cir.2006). The determination of 'habitual residence' is to be based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them. Avila, 538 F.3d at 583. The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for 'the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time 'immediately before the removal or retention.'" Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir.2010). The Court found that the date of the alleged wrongful retention was March 30, 2011, the date upon which JMR's retention in Illinois first violated Irish law. The Court had to decide whether JMR was a habitual resident of Ireland immediately prior to March 30, 2011 and did not consider the events in JMR's life after March 30, 2011. In determining habitual residence, the Court first examines the shared intent of the parents. Koch, 450 F.3d at 715; see also Gitter v. Gitter, 396 F.3d 124, 133 (2d. Cir.2005) In nearly all of the cases that arise under the Convention ... the parents have come to disagree as to the place of the child's habitual residence. It then becomes the court's task to determine the intentions of the parents as of the last time that their intentions were shared.". This examination is especially relevant in cases involving young children such as JMR. See Koch, 450 F.3d at 713 ("In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence.").
The Court noted that Mr. and Ms. Redmond, unmarried, had an intimate relationship for over ten years and maintained a home in Ireland. Ms. Redmond was born in the United States, but at the time of her pregnancy with JMR, had lived in Ireland for a decade. While JMR was also born in the United States, Mr. and Ms. Redmond immediately returned with him to Ireland when he was only eleven-days-old. The parties lived together with JMR in Ireland until November 2007. The quick return with JMR to their home in Ireland after his birth evidences the parents' shared intent that JMR reside in Ireland. Therefore, at least initially, JMR's habitual residence was in Ireland. Since November 2007, the parties have not maintained a shared intent as to the location of JMR's habitual residence. The question before the Court, therefore, was whether JMR's habitual residence has changed from Ireland to Illinois. There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On one end are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001). On the other end "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." "In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." The present dispute fell much closer to the latter end.
Ms. Redmond's actions revealed that she was fully aware that JMR's status in Illinois has always been contingent on the Irish custody proceedings. Both Mr. and Ms. Redmond vigorously litigated their cases before the Irish courts. Ms. Redmond was represented throughout the Irish custody proceedings and fully participated in them, frequently traveling with JMR to Ireland for court dates. Ms. Redmond was well aware that Mr. Redmond was seeking guardianship and custody rights of JMR in Ireland. In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to relocate with her to the United States. Although she may have hoped to move permanently to Illinois, Ms. Redmond also recognized that Ireland would have the ultimate say. For his part, Mr. Redmond never wavered that Ireland is JMR's habitual residence, as he filed for custody and guardianship shortly after Ms. Redmond first left. These circumstances weighed against a finding that JMR's habitual residence changed from Ireland to Illinois. JMR's status in Illinois-as evidenced by the conduct of both parties-has always been "contingent" or "temporary," and has never been "settled." Ms. Redmond acknowledged so much when she met with the Irish community welfare officer on March 12, 2008, when she petitioned the Irish courts to allow JMR to relocate with her to the United States in January 2009, and when she promised the Irish court in February 2011 that she would return with JMR to Ireland by March 30, 2011.
The next question was whether acclimatization should suffice to establish a change in JMR's habitual residence. Courts will often consider a child's habitual residence to be "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder. 63 F.3d 217, 224 (3d. Cir.1995). Under this framework, if JMR had become "acclimatized to the new environment to such a degree," then he can become "a habitual resident of the new country despite the parents' shared intentions." Koch. 450 F.3d at 714. Ms. Redmond contended that JMR's life in Illinois from November 2007 through March 30, 2011, changed his habitual residence from Ireland to Illinois. Ms. Redmond testified that JMR had a pediatrician and dentist in Illinois and that she placed him in KinderCare from the age of two-and-a-half through three-and-a-half. She further testified that JMR went with her (or her parents) to St. Michael's church, had play dates with his friends, and frequently interacted with his large extended family in Illinois. Ms. Redmond noted that JMR spent approximately ten-and-a-half weeks in Ireland between November 2007 and February 2011, but that these returns were (with the exception of the first) all for court dates.
While these facts, coupled with the passage of nearly three-and-a-half years of very early childhood, suggested that JMR was happy and well-adjusted to his life in Illinois, such a finding was not dispositive of habitual residence in this case. The Ninth Circuit has cautioned that despite the superficial appeal of focusing primarily on the child's contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Ms. Redmond unilaterally removed JMR from his original habitual residence in Ireland. Shortly thereafter, Mr. Redmond initiated custody proceedings to get JMR back. Indeed, what makes this case unique is Mr. Redmond's vigorous (and thus far successful) pursuit of his custody rights for nearly the entire duration of JMR's life in Illinois. As properly recognized by the Irish courts as well as the Circuit Court of Cook County, this is an Irish custody dispute, the merits of which have been, and should continue to be, adjudicated in Ireland. Ms. Redmond's flight to Illinois-which was only permitted in the first place because she promised under oath to return to Ireland-is
precisely the conduct that the Convention is designed to prevent.
The Court found that JMR's habitual residence was and still is in Ireland.
The Irish courts granted Mr. Redmond joint custody rights on February 10, 2011. While Ms. Redmond was granted leave to settle her affairs in the United States, she was ordered to return to Ireland with JMR by March 30, 2011, in order to share custody of JMR with Mr. Redmond "on a 50/50 basis." While ostensibly settling her affairs, she filed suit in the Circuit Court of Cook County. Ms. Redmond never returned to Ireland with JMR, and thereby breached Mr. Redmond's custody rights under Irish law.
Once a petitioner has established that he or she has custody rights under the laws of the country of habitual residence, courts 'liberally' find the exercise of those custody rights." Mr. Redmond exercised or attempted to exercise his custody rights since March 25, 2008, the date he initiated the Irish custody case. Mr. Redmond continued to actively pursue those rights through the instant petition under the Convention. Through his past and continued legal efforts, Mr. Redmond has established that he would have exercised his custody rights but for JMR's retention in Illinois. Mr. Redmond established, by a preponderance of the evidence, that as of March 30, 2011, JMR was wrongfully retained in Illinois, in violation of the Convention.
Mr. Redmond's petition for the return of JMR to Ireland was granted.
Tuesday, July 3, 2012
Monday, June 18, 2012
Acosta v Acosta, 2012 WL 2178982 (D.Minn.) [Peru] [Grave Risk of Harm]
In Acosta v Acosta, 2012 WL 2178982 (D.Minn.) Ricardo Acosta ("Ricardo") petitioned for the return of his two minor children M.A.A. and E.T.A. to Peru. Ricardo appeared telephonically from Peru. Ricardo was a citizen and resident of Peru. Anne Acosta the Respondent was citizen of the United States. She resided in Minnesota. Stephen and Susan Campbell were Anne's parents, and the grandparents of M.A.A. and E.T.A. Ricardo and Anne were the parents of two children: M.A.A., born February 6, 2003, and E.T.A., born August 23, 2007. On November 26, 2002, Ricardo and Anne were married in Ramsey County, Minnesota. From November 2002 to July 2006, Anne and Ricardo lived together in the United States in the states of Minnesota and Wisconsin. M.A.A. was born in the United States on February 6, 2003. In July 2006, Anne, Ricardo, and M.A.A. moved to Lima, Peru. On August 23, 2007, E.T.A. was born in Lima, Peru, and resided there with her family. While in Peru, Anne worked as a teacher at el Colegio de Franklin Delano Roosevelt (the "Roosevelt School"). Ricardo was briefly employed there as well, but more recently worked at the Lima airport.
Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.
In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011. After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.
Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.
Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.
After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.
After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.
In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.
On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011. On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.
While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.
Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.
At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.
The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.
Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.
In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011. After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.
Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.
Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.
After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.
After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.
In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.
On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011. On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.
While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.
Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.
At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.
The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.
Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) [Turkey] [Well-Settled] [Rights of access]
In Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) Nurettin Ozaltin filed a Petition on March 30,2012 for the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remain in the United States. On April 2, 2012, the Court issued an order, directing Respondent Zeynep Tekiner Ozaltin to show cause as to why the Petition should not be granted. On April 30, 2012, and May 1, 2012, the parties appeared before the Court for an evidentiary hearing.
Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.
Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.
On January 7, 2011, Petitioner filed an application, pursuant to the Hague Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.
On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.
Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.
The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.
The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.
Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.
The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"
Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.
As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's return to Turkey if Respondent could show that the Children are so well settled in New York that, "at least inferentially, return would be disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d at 218. Furthermore, "even where the respondent meets his or her burden to show that [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").
The Court observed that some of the factors courts consider in determining whether a child is well settled include: 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 day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.
S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010 removal from Turkey, as the Children spent approximately eight months in New York (December 22, 2010 to August 18, 2011), and then spent two and a half months in Turkey (August 18, 2011 to November 4, 2011), before returning to the United States for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.
The Court granted th ePetition insofar as it sought the return of the Children to Turkey.
Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of access, relying on Article 21 of the Convention, which states that "[a]n application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence. Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.
Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.
Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.
On January 7, 2011, Petitioner filed an application, pursuant to the Hague Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.
On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.
Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.
The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.
The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.
Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.
The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"
Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.
As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's return to Turkey if Respondent could show that the Children are so well settled in New York that, "at least inferentially, return would be disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d at 218. Furthermore, "even where the respondent meets his or her burden to show that [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").
The Court observed that some of the factors courts consider in determining whether a child is well settled include: 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 day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.
S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010 removal from Turkey, as the Children spent approximately eight months in New York (December 22, 2010 to August 18, 2011), and then spent two and a half months in Turkey (August 18, 2011 to November 4, 2011), before returning to the United States for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.
The Court granted th ePetition insofar as it sought the return of the Children to Turkey.
Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of access, relying on Article 21 of the Convention, which states that "[a]n application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence. Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.
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