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In Haimdas v Haimdas, --- F.Supp.2d ----, 2010
WL 2342377 (E.D.N.Y.) Petitioner Felicia Haimdas, a British citizen,
petitioned for the return of her two sons to England The boys--S.H., age
10, and A.H., age 12 were been retained in the United States by their
father, respondent Jagmohan Haimdas, a Guyana-born naturalized United
States citizen, without petitioner's consent since August 26, 2008.
The petition was filed on May 13, 2009. On February 23, 24 and 25 and
March 2,
2010, the Court conducted a bench trial. As authorized by Rule 43(a) of
the
Federal Rules of Civil Procedure, petitioner, who had been unable to
obtain a visa
to travel to this country, testified via a live video link from London,
England.
Respondent and Dr. Glen D. Skoler, a psychologist retained by petitioner
as an
expert witness, testified in open court. The Court interviewed the
children in
camera on the record but outside the presence of the parties and their
respective
counsel. (Noting that this procedure was consistent with those adopted
by district courts in Hague Convention cases. See, e.g., Matovski v.
Matovski, No. 06 Civ. 4259, 2007 WL 2600862, at *1 & n.2 (S.D.N.Y. Aug.
31, 2007); Koc v. Koc, 181 F.Supp.2d 136, 144 & n.10 (E.D .N.Y.2001)).
Petitioner and respondent were married in London on December 21, 1996.
Within two weeks of their wedding, on January 24, 1997, petitioner and
respondent came to the United States together and moved into their
extended family's house in Queens, although petitioner had only a
tourist visa. In June 1997, the first of their two sons, A.H., was born
in the United States. As the child of a citizen of the United Kingdom,
A.H. became a dual citizen of both countries upon his birth, and retains
that status today. Approximately two years later their second son, S.H.,
was born. Like A.H., S.H. was a dual citizen of the United States and
the United Kingdom. The relationship deteriorated further and in
September 2001, petitioner decided, with respondent's blessing, to take
the children to England by herself and raise them there indefinitely.
Petitioner took as many belongings as she could fit into five suitcases,
and flew to England with the boys on one-way tickets purchased by
respondent. Upon arrival, they moved in with petitioner's mother in
Croydon, an outer borough of London. A.H. started nursery school in
England in October 2001, while S.H., still an infant, stayed home with
his mother. They lived in England without interruption for the next
seven months. On April 12, 2002, petitioner and the children flew to New
York for what petitioner intended to be a two-week visit. Upon landing
at John F. Kennedy International Airport in Queens, petitioner was
denied
entry into the United States because she had previously overstayed her
tourist
visa by four years, and was forced to reboard a plane back to England by
herself.
Her children and brother, however, cleared Immigration and Customs and
entered the
arrivals terminal, where respondent was waiting to pick them. Before
petitioner flew back to England, she had an opportunity to speak to
respondent for a few minutes at the airport, and told him "to send the
children home after two weeks with [her] brother." Notwithstanding the
conversation, when the time came to use the round-trip tickets he had
purchased for them, respondent refused to send the children back as
scheduled.
For the next three years, over petitioner's objections and entreaties,
the boys lived with respondent in New York.
Although he refused to allow their children to go back to England and
live with
petitioner during this period, respondent did not wholly block her from
seeing
them, with certain conditions and limitations.
In the summer of 2005, A.H and S.H., then eight and five years old,
respectively, returned to England and remained there for the next three
years. During this period, they lived with petitioner in an apartment
close to her mother's home in Croydon and attended British schools.
Petitioner took care of the children's overall well-being, providing
them with clothes, food, shelter, medical and other living expenses and
overseeing their education.. The facts surrounding this turn of events
were the subject of some dispute.
The petitioner contended that the children were habitual residents of
England, while respondent asserted that the "[t]he children were
habitually resident in New York since their birth."
During the period between January 1997 and September 2001, petitioner
and
respondent lived together as husband and wife in New York, and
petitioner bore
their two sons here. Though born on American soil, both children were at
birth,
and still are today, dual citizens of England and the United States.
Petitioner
testified undisputedly at trial that, in September 2001, she gathered
essentially
all of her worldly possessions and moved to England with both children
in tow,
intending to raise them there indefinitely as a single parent.
Petitioner further
testified that: (1) she decided to move after respondent kicked her and
the
children out of their home in Queens; (2) respondent bought one-way
tickets to
London for the three of them; (3) in fall 2001, petitioner enrolled the
school-age
older child in nursery school in England; and (4) petitioner lived with
both
children in England for the next seven months. These uncontroverted
facts
illustrated that, in September 2001, petitioner and respondent mutually
intended
both children to abandon life in the United States and acquire a new
habitual
residence in England, the agreed-upon geographical change actually
occurred and
the children subsequently stayed in England long enough to become
acclimatized.
Thus, the Court found A.H. and S.H. were habitual residents of England
as of April 12, 2002, when petitioner flew to the United States with
both children for a short visit and, in a peculiarly unpleasant
incident, was separated from them against her will by border officials
at the airport and forced to fly back to England alone.
Respondent received the children at the airport in New York that day and
refused to consent to their return to petitioner's care in England for
the following three years. During this time, the Court found no credible
support for the conclusion that petitioner and respondent agreed that
the boys' habitual residence should revert to the United States; rather,
petitioner periodically reminded respondent that she believed it best
for the children to live with her in England. Further, the Court found
no evidence in the record "unequivocally pointing] to the conclusion"
that either child became so utterly acclimatized to the United States
between 2002 and 2005 that his habitual residence shifted regardless of
the lack of parental consensus. Gitter, 396 F.3d at 134. Boys
subsequently proved capable of readjusting to life overseas with
petitioner without serious incident. Accordingly, throughout this
prolonged stay in the United States, A.H. and S.H. remained "habitual
residents" of England for Hague Convention purposes.
Even assuming arguendo that the children's habitual residence did shift
back to
the United States after April 2002, any such change was mooted by
subsequent
events. In fall 2005, both boys entered school in England and attended
classes there continuously until respondent's retention of them in the
United
States in August 2008 prevented it. On these facts, the Court found
that, as a
result of their parents' shared intent, the children returned to
England--the
place of their "habitual residence"--for a second time in the summer of
2005, and
lived their lives there with a high degree of settled purpose for the
next three
years. In other words, even if their habitual residence had reverted to
the United
States earlier, it shifted back to England then. Even though the
children were now living in the United States with respondent, and have
been since late summer 2008, respondent unreservedly acknowledged that
petitioner never consented or acquiesced to this arrangement. Further,
there was no evidence that, since leaving England in July 2008, either
child had become so acclimatized to the United States that compelling
return to England "can be expected" to result in "serious harm to the
child,"
Gitter, 396 F.3d at 134, or would "be tantamount to taking the child out
of the
family and social environment in which [his] life has developed.
Ultimately, the Court could not conclude that, at present, their
acclimatization to the United States was sufficient to outweigh their
parents' last shared intent. The court found the most recent point in
time where petitioner and respondent mutually agreed upon their
children's habitual residence was in the summer of 2005, when they both
agreed to reaffirm England as that geographic location. That decision
was totally in harmony with the prior formed and executed shared intent
in September 2001, when the marriage fell apart and petitioner and the
children moved to England with respondent's cooperation.
Petitioner asserted that she has "rights of custody" by "operation of"
English law--specifically, the United Kingdom Children Act of 1989 (the
"Children Act"),
the statute which establishes "all the law relating to the care and
upbringing of
children" in that country. Although the Children Act does not employ the
word "custody" as a legal term of art, it provides in relevant part
that: "[w]here a child's father and mother were married to each other at
the time of his birth, they shall each have parental responsibility for
the child," which is defined as "all the rights, duties, powers,
responsibilities and authority which by law a parent of a child has in
relation to the child and his property." Children Act §§2(1), 3(1)
(emphasis added). More than one person may have parental responsibility
for the same child at the same time . "A
plain reading of the definition of 'parental responsibility' in the
Children
Act and the definition of 'rights of custody' in the Hague Convention
leads
to the conclusion that the former includes the latter. Accordingly,
American courts have interpreted Section 2 of the Children Act as
sufficient proof of de jure rights of custody for a Hague Convention
prima facie showing of wrongful retention or removal, at least where no
English court order negating the petitioner's parental responsibility is
in effect.
English court orders were issued to protect petitioner's ability to
exercise her rights to "care" for the children. The Prohibited Steps
Order prohibited respondent from "removing the children from the care of
[petitioner] or from the care of any person to whom she has entrusted
such care" without her consent, and required respondent to "return the
children to the [petitioner] promptly at the expiry of any agreed
contact"
; the succeeding Contact Order specifically provided for the
continuation
of these provisions. Respondent's sustained refusal to return his sons
to petitioner's care following August 25, 2008, the scheduled end date
of the short visit for which petitioner had agreed to release them,
plainly violated these specific judicial directives. The Court found
that respondent's actions are "in breach of rights of custody attributed
to [petitioner] under the law of the State in which the children] [were]
habitually resident immediately before the ... retention," namely, the
United Kingdom. Hague Convention, art. 3(a).
The Court noted that the English Child Abduction Act 1984 ("Abduction
Act") provides that it is a criminal offense for a parent to take a
child out of the United Kingdom for
more than one month without the consent of the other parent, absent a
court order
in favor of the first parent. (See Abduction Act, ch. 37, 1). In other
words,
English law vests each parent of a child with a "ne exeat right: the
authority to
consent before the other parent may take the child to another country."
Abbott,
2010 WL 1946730, at *3. In addition, the Supreme Court recently held
that a "ne exeat right is a right of custody under the [Hague]
Convention,"
reasoning that a parent's "joint right to decide [a child's] country of
residence
allows [the parent] to 'determine the child's place of residence' ....
[and] also
gives [the parent] 'rights relating to the care of the person of the
child.' "
Petitioner also held a ne exeat right pursuant to both operation of
English law and specific court order. Since August 25, 2008, respondent
breached this "right of custody" by retaining the children outside of
England both without petitioner's consent and without ever seeking or
obtaining authorization from the appropriate English court.
Prior to trial, the parties stipulated that: "[during the time when the
Children
lived with Petitioner in England, Petitioner took care of their overall
well-being, providing them with clothes, food, shelter, medical and
other living
expenses." . This was borne out by petitioner's testimony. Since July
25, 2008, A.H. and S.H. have been situated an ocean away from petitioner
in the United States, a country that she is legally barred from
entering; petitioner obviously has not been taking "care of their
overall well-being" during this time. Notwithstanding, the Court found
it reasonable to conclude that, but for respondent's unilateral
retention of the children in the United States past the scheduled end of
their month-long visit, petitioner would
have resumed taking "care of their overall well-being" in England.
Similarly, the
Court finds that petitioner would have exercised her ne exeat right but
for the
retention; she declined to consent to the boys' staying out of England
for longer
than one month, but she had no way to enforce that condition once they
were
physically present in the United States. In sum, petitioner satisfied
her burden of establishing a prima facie case of wrongful retention
under the Convention.
Respondent's defense to petitioner's prima facie case for return was
premised exclusively on an unnumbered sentence in article 13 of the
Convention often dubbed the "age and maturity defense" or the "mature
child exception," which provides that a court "may ... refuse to order
the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at which
it is
appropriate to take account of its views." Hague Convention, art. 13.
Respondent had the burden of proving the applicability of the age and
maturity defense by a preponderance of the evidence. (See 42 U.S.C.
11603(e)(2)(B). The Court noted that the fact that a sufficiently mature
child objects to repatriation "may be conclusive"; in other words, a
district court can decline to order return of a wrongfully retained or
removed child on that ground alone. (Citing Blondin II, 238 F.3d at
166). However, it bears emphasis that the Convention merely calls for a
court to "take account of" a mature child's objection to return, not to
accede to it automatically. Further, a court always retains discretion
to order repatriation notwithstanding the applicability of any Hague
Convention exception if that would best fulfill the purposes of the
Convention; the discretionary aspect is particularly important with
respect to the mature child exception because of the potential for undue
influence by the person who allegedly wrongfully retained the child.
Such undue influence is not always
calculated or intended by the custodial parent. A lengthy wrongful
retention
could enable the child to become comfortable in his or her new
surroundings, which
may create a desire to remain in his or her new home. However, a finding
of undue influence is not a prerequisite to a decision not to apply the
mature child exception.
Whether a child is mature enough to have its views considered is a
factual
finding that a district court must make in light of the specific
circumstances of
each case. There are no established objective criteria or tests for
assessing
"maturity" in the context of the mature child exception, although the
Second Circuit has observed as a general matter that the standard should
be a relatively demanding one. (Citing Blondin II, 238 F.3d at 166
holding that a court may consider any testimony of a child that is
"germane" to a broader analysis of whether a grave risk of harm exists
upon repatriation, and noting "it stands to reason that the standard for
considering a child's testimony as one part of a broader analysis ...
would not be as strict as the standard for relying solely on a child's
objections to deny repatriation under Article 13"). While the testimony
of psychological experts is frequently proffered in this context, few
cases address the weight to be accorded to a psychologist's testimony in
a Hague Convention case. A handful of courts have rejected such
testimony wholesale,
finding it to be "appropriate in a custody proceeding, not in a Hague
Convention
case.. Others, however, have relied heavily on psychologists' testimony
when deciding whether to apply the mature child exception.
Significantly, courts distinguish between a child's "objection" to
return, as
referenced in the Hague Convention, "and a child's wishes, as expressed
in a
custody case.... [T]he notion of 'objections' ... is far stronger and
more
restrictive than that of 'wishes' in a custody case.. A child's
expression of a preference to remain in the United States rather than a
particularized objection to repatriation
may provide a basis for a court to find the mature child exception
inapplicable.
The Court found that respondent had not proved by a preponderance of the
evidence that S.H., who was interviewed in camera approximately two
months shy of
his tenth birthday, was sufficiently mature for the Court to take his
views into
account. The Court gave no weight to Dr. Skoler's testimony and report
in
assessing either child's maturity level, or in determining any other
matter in controversy. S.H. expressed a strong--indeed,
unequivocal--desire to remain in New York rather than return to England.
His main objections to England itself appeared to be his aversion to the
climate (which is always rainy and cold, and never summer) and his
staunch belief that England offers inferior athletic opportunities
(because the sport of cricket is never played there) and educational
opportunities (because there are no science, social studies or gym
classes taught in English schools). Primarily, however, S.H.
explained his objection to return by drawing an intensely unfavorable
comparison
between what life is like now with his father and what he now recalls
life was
like before with his mother, who he last saw when he was eight years
old. Despite
the fact that, as the Court found respondent did not intentionally plant
words in
S.H.'s mouth, the child's view of his mother has clearly been impacted
by his
physical separation from her for much of his life and the strained and
often
bitter relationship between his parents. All in all, the Court found
that S.H. was an intelligent, well-mannered and congenial child, but
hardly sufficiently mature for the Court to take his views into account
in deciding whether or not to order return to his country of habitual
residence.
The Court found A.H. him to be a remarkably intelligent, well-spoken and
mature 12-year old. Even to the extent that it is appropriate to take
A.H.'s views
into account, they did not foreclose his return to England. A.H., like
his little
brother, bemoaned the weather and the availability of interesting sports
activity
in England and ticked off a laundry list of reasons why he likes living
with his
father more than his mother. However, the message that A.H. conveyed
most
coherently and emphatically was that, above all, he did not want to be
separated
from S.H. Indeed, A.H. openly admitted that he definitively decided that
he did
not want to return to England once S.H. informed him that he wanted to
stay in New
York. A.H. told the Court: "I don't want to be split from my brother. I
said that's what I think too. That is what I thought too." The Court
found A.H.'s commitment to staying with his brother to be the most
compelling testament possible to A.H.'s maturity. Although he has
expressed a preference to remain in the United
States now, this preference will evaporate if S.H. returns to England.
A.H., in
other words, has expressed a sincere preference to remain in the United
States,
but certainly not an unequivocal objection to his return to the United
Kingdom.
Thus, A.H.'s viewpoint, as mature as it is, cannot be an adequate basis
for this
Court to"disregard the narrowness of the age and maturity exception to
the
Convention's rule of mandatory return.
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