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In Philippopoulos, v. Philippopoulou, 461 F.Supp.2d 1321 ( N.D. Georgia,
2006) the father a citizen of Greece, petitioned, pursuant to the Hague
Convention for the return of his minor daughter allegedly wrongfully
relocated to the United States by her mother. The Respondent's moved to
dismiss on the basis of her affirmative defense that the petition should
be dismissed because it was not timely filed. Petitioner and Respondent
were married in Greece and their daughter was born there. On July 1,
2005, Respondent and the child left the family's home in Greece on a
planned vacation to the United States to visit Respondent's family in
Georgia. Petitioner and Respondent agreed that Respondent and the child
would return to Greece on August 15, 2005. On July 4, 2005, three days
after departing Greece, Petitioner was served with an Extra-Judiciary
Protest and Notice formally notifying him that Respondent intended to
remain with the child in the United States and not return to Greece as
she had previously agreed. On November 1, 2005, Petitioner filed an
application with the National Center for Missing and Exploited Children
(the "NCMEC") for the return of the child to Greece. On November 7,
2005, the U.S. State Department sent Respondent a letter notifying her
that Petitioner had filed a request for the child's return. On November
28, 2005, the NCMEC contacted Respondent's former counsel, who indicated
that Respondent was willing to participate in a mediation to resolve the
dispute. On March 24, 2006, the mediation took place, but was
unsuccessful. In May 2006, pursuant to Petitioner's request, the NCMEC
began a search for pro bono counsel for Petitioner in the United States.
On July 18, 2006, Michael J. Sullivan agreed to represent Petitioner. On
August 11, 2006, Petitioner filed his petition in this Court for the
return of his child. The Court found that Petitioner set forth a prima
facie case of wrongful retention under the Hague Convention. It was
undisputed that the child's habitual residence prior to visiting the
United States was Greece and that Petitioner had custody rights pursuant
to Greek law and was exercising them at the time of the alleged wrongful
retention. Article 12 of the Hague Convention mandates the return of a
child who has been "wrongfully removed or retained in terms of Article 3
and, at the date of commencement of the proceedings before the judicial
or administrative authority of the Contract state where the child is, a
period of less than one year has elapsed." Even if more than one year
has elapsed, the child shall be returned "unless it is demonstrated that
the child is now settled in its new environment." Respondent contended
that the child should not be returned to Greece because the petition was
filed more than one year after the wrongful retention of the child and
the child is well-settled in her new environment. Citing In re Cabrera,
323 F.Supp.2d 1303, 1303 (S.D.Fla.2004), Respondent argued that the
retention of a child becomes wrongful as soon as the non-retaining
parent becomes aware of the retaining parent's true intention not to
return. She argued that Petitioner became aware of her true intention
not to return on July 4, 2005, when he was served with the
Extra-Judiciary Protest and Notice, over one year before he commenced
this action on August 11, 2005. Petitioner contended that his petition
was timely because the wrongful retention did not begin until August 15,
2005, the date upon which Respondent failed to return to Greece as she
had agreed. The Court agreed with Petitioner and found that his petition
was timely filed. Under the Hague Convention a parent whose child is
wrongfully retained from its home country has one year from the date
upon which the wrongful retention began to file suit for the child's
return. The court noted that while Petitioner probably could have filed
suit immediately upon learning of Respondent's intention to wrongfully
retain the child, Petitioner also had the right to wait to file suit
until after the retention became wrongful. Because Respondent had agreed
to return the parties' child to Greece on August 15, 2005, her retention
of the child did not become wrongful until that date.
Thus, Petitioner had until August 15, 2006, to file this action.
Because he filed his petition before that date, Respondent failed to
carry her burden of showing that the petition should be dismissed for
untimeliness. The Court also noted that under the Hague Convention, even
if the petition was not filed within twelve months of when the retention
became wrongful and the child is well settled, the Court has the
discretion to return the child to Greece. Citing Antunez-Fernandes v.
Connors-Fernandes, 259 F.Supp.2d 800, 815 (N.D.Iowa 2003). Therefore,
Respondent failed to show that even if July 4, 2005, were the relevant
date, there was no set of facts under which the petition could be
granted. The Court thus found that Respondent had not established the
Article 12 defense of timeliness as a matter of law, and denied the
motion to dismiss the petition at this time on the basis of that
defense.
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