| In Radu v Toader, 2011 WL
3418368 (E.D.N.Y.) Iulian Cristian Radu ("petitioner") brought an action
against Petruta Toader ("respondent") for the return of their child L.R.
to Romania pursuant to the Hague Convention. Petitioner was a Romanian
citizen, and currently lived in Romania. Respondent and L.R. were also
Romanian citizens, but currently resided in Forest Hills, New York. The
petition was filed on April 6, 2011. Petitioner and respondent were born
in Romania and were Romanian citizens. In January 2003, the two married
in Romania. Two years later, on January 13, 2005, L.R. was born in
Romania. Petitioner, respondent, and L.R. lived together in respondent's
parent's home in Bucharest, Romania until August 2009. In May 2009,
respondent took a business trip to New York for approximately five days.
Upon her return, she demanded that the family move to New York. When
petitioner refused, respondent filed for divorce at the end of May 2009.
Petitioner contended that after respondent filed for divorce, she
refused to let him see his child. On October 2, 2009, a Bucharest court
issued a Divorce Decree granting respondent sole custody of the child
and granting petitioner visitation rights, for one year, for two
weekends each month, two weeks during the summer, one week during winter
vacation, and one week during the Easter holiday. The Divorce Decree
provided that, pursuant to Romanian Family Code and Law no. 272/2004,
the noncustodial parent "shall retain the right to a personal
relationship with the child," have input in the "upbringing and
education of the child," and maintain a "close emotional relationship"
with the child. The Decree also required that petitioner pay 300 Lei
each month in alimony, which he continued to do since the divorce. The
court defines the custody determination as a "final and irrevocable
court decision." The Divorce Decree stated that the dissolution of the
marriage was by "shared fault." Both parties were represented by counsel
during the signing of the Decree and there was no other evidence to
indicate that there was any illegality in its construction. The district
court noted that petitioners visitation rights did not amount to
custodial rights as required for the return of the child to Romania.
Between the divorce in October 2009 and L.R.'s removal from Romania in
September 2010, petitioner exercised his visitation rights and provided
financial and emotional support to the child. From approximately
December 2009 to June 2010, respondent permitted petitioner to have
additional visits with the child beyond his decreed visitation schedule.
On September 17, 2010, respondent and the child moved to the United
States without notifying petitioner. Respondent noted that she did not
tell petitioner that she intended to change the child's domicile because
she was "unsure how her relationship with another man-now her
husband-would turn out." Respondent also maintained that her Romanian
attorney told her that, pursuant to law 248/500, respondent did not need
petitioner's permission to change the child's domicile. On September 25,
2010, petitioner went to pick up his child from respondent's home for
his scheduled visit and was told by respondent's parents that respondent
and the child had resettled in the United States. On September 29, 2010,
petitioner received a letter from respondent's attorney, which provided
him with respondent and L.R.'s new address and telephone number in
Forest Hills, New York. Petitioner has since had telecommunications with
his child via both phone calls and video conference.
On February 25, 2011, petitioner filed a
petition in the Bucharest Court seeking a decision that respondent's
removal and retention of L.R. outside of Romania was illegal. On May 5,
2011, the Bucharest Court dismissed the action, finding that petitioner
did not have standing to bring the suit and was without remedy of law.
The District Court observed that in order to
raise a prima facie case, a petitioner had to prove by a preponderance
of the evidence that: "(1) the child was habitually resident in one
State and has been ... retained in a different State; (2) the ...
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 [or would have exercised those rights] at the
time of the ... retention." Gitter v Gitter, 396 F.3d at 130-131. If a
court deems that there has been a wrongful removal or retention of a
child under the age of sixteen, and the petition was brought within a
year of the wrongful removal or retention, the country in which the
child is located must "order the return of the child forthwith," unless
the respondent is able to raise an affirmative defense. Hague Convention
art. 12.
The District Court found that petitioner failed
to establish a prima facie case of wrongful removal and retention by a
preponderance of the evidence. The parties did not dispute that L.R. was
a habitual resident of Romania at the time of his removal. The pinnacle
issue was whether respondent's unilateral decision to change the child's
domicile was in breach of petitioner's rights of custody. Both sides
cited to Abbott as the seminal case in determining whether petitioner
has a ne exeat right-the right of a parent to require his consent before
a child is taken out of the country. In Abbott, the Court held that a
parent's ne exeat right qualifies as right of a custody under the Hague
Convention. See 130 S.Ct. at 1990. Therein, the father and mother
separated and a Chilean court awarded visitation rights to the father.
Id. at 1988. The Court found that while visitation rights or "rights of
access" alone did not amount to a ne exeat right, where the law of the
country of residence explicitly requires a parent to give consent before
removing the child, a custodial right exists. Thus, absent an explicit
award of custody, the Court consulted the law of the country of
residence to determine whether a parent had a ne exeat right.
The district court observed that the final and
irrevocable Divorce Decree only awarded petitioner visitation rights,
not custodial rights. The Court rejected petitioners argument that his
visitation rights, in conjunction with four Romanian laws, amounted to a
ne exeat right. The first law to which petitioner cited was the Romanian
Law on the Protection and Promotion of the Rights of the Child, Law
272/2004, which concerns a child's temporary travel abroad. That law
provides, in part, that "the child[ ]'s travel in the country or abroad
may only be done when both parents have been notified and have agreed;
any misunderstanding between the parents concerning the expression of
this agreement is ruled upon by the court of law." Here, respondent did
not notify petitioner of L.R.'s travel to the United States; however,
any disagreement arising from the child's travel outside of Romania had
already been ruled upon by "the court of law"--that is, the irrevocable
and final decision rendered in the Divorce Decree, which granted sole
custody to respondent. Although petitioner argued that his visitation
rights alone created a ne exeat right, this argument was misguided. See
Abbott, 130 S.Ct. at 1988-89 (finding that "direct and regular
visitation rights," are recognized as "rights of access," but that these
rights alone do not offer a return remedy under the Convention). Upon
reading Law 272/2004 in full, the district court observed that the law
clearly anticipated that a final and irrevocable custody determination
would modify and limit the very parental rights which Law 272/2004
espoused. Article 16, for example, provides that the "court of law,
considering the best interests of the child as a priority, can limit the
exercise of the [noncustodial parent's right to maintain direct
contact]." The Bucharest court that issued the parties' Divorce Decree
did just that, and negated petitioner's custodial rights by awarding
respondent sole custody of the child. Thus, petitioner failed to
establish that the Divorce Decree and law 272/2004 created a ne exeat
right. The second law to which petitioner cited was the Status of the
Free Movement of the Romanian Citizens Abroad Law 248/2005,
("248/2005"), which states that a minor Romanian citizen may leave the
country when accompanied by one of his parents "without the need for the
other parent's affidavit, only if the accompanying parent presents proof
that she has custody of the minor based on a final and irrevocable court
decree." This law clarified that because respondent has a final and
irrevocable Divorce Decree vesting her with sole custody of L.R., she
could temporarily remove L.R. from Romania without petitioner's
permission. The Court found that the Divorce Decree superseded the prior
Romanian law requiring both parents' consent. The Romanian Consulate
affirmed this finding in a letter to this Court, noting that "[i]n
accordance with the Romanian Law no. 248/2005, as amended, the parent
who has the custody of the child is entitled to request the issuance of
a Romanian passport/travel document for the said child and to approve
any trip abroad, without the other parent's consent." Accordingly, Law
248/2005 failed to confer upon petitioner a ne exeat right.
The Court concluded that petitioner had not
established that he had any ne exeat rights as to L.R. under the Divorce
Decree or Romanian law. The Romanian court rendered a final and
irrevocable custodial determination in favor of respondent, did not
award any custodial rights to petitioner, and was silent as to
petitioner's ne exeat rights. This Decree, under Romanian law, then
superseded any ne exeat right that petitioner may have had. Accordingly,
petitioner failed to establish that respondent's retention of L.R. was
in violation of his custodial rights.. Because the Divorce Decree did
not afford petitioner with custodial rights, and Romanian law does not
grant a ne exeat right in the face of the superseding Divorce Decree,
petitioner had no custodial rights to exercise at the time of L.R.'s
removal. Accordingly, petitioner failed to meet the third element of his
prima facie case. The petition was therefore dismissed.
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