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In State ex rel Geiser v Valentine, 11/16/2007
NYLJ 30, (col. 3) (Sup.Ct, Richmond Co., Minardo, J.) the petitioner,
Beat Geiser, a Swiss national, moved for a Writ of Habeas Corpus to
produce his children, M.G. and N.G., so that they may be returned to
Switzerland pursuant to the Hague Convention since Switzerland is their
habitual residence. The respondent, Sherry Valentine, a citizen of the
United States, moved by Order to Show Cause for an Order of Protection
against the petitioner, for the benefit of their children. The court
found that that the testimony of the petitioner was credible while the
testimony of the respondent was "less than credible". The petitioner and
respondent had two children, M. born 2000 in Bolivia, and N. born 2003
in Switzerland. Both children have dual citizenship in the countries of
Switzerland and in the United States of America. The parties married in
Switzerland on July 16, 2003 and have resided continuously in
Switzerland since their marriage, leaving only for short periods of time
to vacation and to visit respondent's ailing father in New York and then
to attend his funeral. On or about September 12, 2006, the parties
entered into a Separation Agreement which provided that the parties live
in separate residences in Switzerland with the children residing with
respondent and the petitioner being granted specific visitation rights.
The agreement forbade the respondent from leaving Switzerland with the
children except for a four week summer vacation at the end of the school
year, i.e. July 1st. Based on conversations with her three
(3) year old daughter, N., respondent concluded her father-in- law was
touching her daughter's nipples in an inappropriate manner. In April
2007, the children, especially N. was acting 'strangely' in that she
wanted to lay on top of her in bed and tried to put her hands between
respondent's legs. Respondent further testified that M. was moving a toy
magic wand in and out of his mouth. Also, M. exhibited aggressive
kissing and hugging and said he did this with his father, petitioner.
Further, N. said her arm was a penis, big and long, and when asked whose
penis, she replied 'I don't want to tell you because Daddy will get mad.
' Respondent also questioned petitioner's mental stability inferring he
may be suicidal and would fail to assure her of
the children's safety while they were in his custody. All of the above
cited allegations of abuse and misconduct were made known to the Office
of the Protection of Adults and Minors, a Swiss child protection agency,
which conducted a full and complete investigation. As part of the
investigation the children, and both petitioner and respondent, were
interviewed and psychological tests were given to the children. Before
the Office of the Protection of Adults and Minors, as well as the police
investigation, finished their reports and findings, the respondent left
Switzerland with the children traveling to New York without informing
the petitioner. The respondent did tell the petitioner she was planning
on going to New York during the summer break with the children. The
summer break commenced July 1, 2007. The respondent and the children
left Switzerland on June 12, 2007, two (2) weeks before school ended.
The next day respondent called petitioner to let him know she went to
New York with the children. However, she refused to give him the address
of her new residence. The respondent remained in New York past the
agreed upon four (4) week vacation period and refused to return to
Switzerland with the children alleging the Swiss authorities did not
take her allegations of child abuse seriously and her belief that the
Swiss people in general were biased against her because she was African
American. The Supreme Court found that the respondent had failed to meet
that burden of establishing by clear and convincing evidence that the
children faced a grave risk of physical or psychological harm or that
returning them to Switzerland will place the children in an intolerable
situation. It pointed out that soon after respondent left Switzerland,
the Office of the Protection of Adults and Minors released their reports
and findings on June 28, 2007. On July 5, 2007 the Swiss Police
concluded their investigation and issued a report. Both the Police and
the Office of Protection of Adults and Minors found no basis or merit to
the allegations of abuse to the children. The court directed that
produce the children to be returned in the company of their father to
Switzerland, who is to report the delivery of the children to the
appropriate central authority, and then returned to respondent in that
country.
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