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In re Choi v. Kim,
404 F. Supp. 495 (S. D. N. Y., 2005), petitioner, through her sworn
statements, and her counsel, through his comments, represented that
petitioner was a lawful permanent resident of Canada and intended to
become a Canadian citizen and live there permanently. Sol Iris was born
in Toronto, Ontario, where petitioner resided with her parents, and
lived there from August 2004 until May 2005. Respondent agreed that
while he was in law school petitioner was to be the primary caregiver.
Respondent provided written consent to permit petitioner to travel with
Sol Iris from Toronto to Cambodia and back to Toronto beginning in May
2005. On her return trip from Cambodia to Toronto, petitioner brought
Sol Iris to New York on August 2, 2005, for a four-day stay to permit
Sol Iris to visit with respondent. Upon arrival in New York on August 2,
2005, petitioner was told that she could not stay in the apartment where
respondent resided with his aunt. Petitioner had not seen or talked to
Sol Iris since, and was barred by respondent from seeing or speaking
with Sol Iris after August 6, 2005. On August 5, 2005, petitioner sent
respondent an email insisting that she be allowed to take Sol Iris
"home" to Toronto. After sending the August 5 email, petitioner spoke to
Respondent who told Petitioner that she would never see Sol Iris again
and that Sol Iris's home was Korea and not Canada. After Petitioner's
arrival in New York on August 2, respondent, on several occasions, asked
for Sol Iris's Korean passport. Respondent filed a custody action in New
York State Family Court with an unknown return date. Respondent has a
history of physically abusing petitioner, and because of Respondent's
"depression problem," petitioner believed that it was "very reasonable
to suspect" that respondent might engage in physical violence toward Sol
Iris. Broadly speaking, the Court finds that respondent and those who
testified on his behalf were credible and that petitioner was not.
The Court noted that although
"habitual residence" is not defined in the Convention, the text of the
Convention directs courts to the time "immediately before the removal or
retention." In determining habitual residency, a court must look back in
time, not forward.... Future plans are irrelevant to our inquiry.
In focusing on the pre-retention
period, the relevant inquiry is the shared intention of those
responsible for fixing the child's place of residence, which typically
will be the child's parents. The Court may also look to other factors in
determining the child's habitual residence. First, a change in geography
is a necessary condition to a child acquiring a new habitual residence.
Second, there must be evidence that points unequivocally to the
conclusion that the child has become acclimatized to his new
surroundings and that his habitual residence has consequently shifted.
The first step toward acquiring a new habitual residence is forming a
settled intention to abandon the one left behind. However, so as not to
undermine the goal of the Hague Convention to deter "gamesmanship" among
adversarial parents, the courts should be slow to infer that the child's
acclimatization trumps the parents' shared intent.
Petitioner claimed that Sol Iris was a
habitual resident of Canada. He pointed to the birth of Sol Iris on
Canadian soil and broadly asserted that she had been "mostly raised in
Canada." Plaintiff claimed that as of August 2004 there was a shared
intent between Petitioner and Respondent to have Petitioner care for Sol
Iris during the academic year from August 2004 until May 2005 in Canada;
that she and Respondent also agreed, as of April 2005, that Petitioner
would take Sol Iris to Cambodia during the summer and then the two would
return to Canada for the academic year August 2005 through May 2006.
Petitioner pointed to Respondent's acquiescence to two of Petitioner's
decisions in April 2005--one registering Sol Iris for junior
kindergarten in Toronto beginning in September 2005 and the other
traveling with Sol Iris to Cambodia and back to Canada. Respondent
contended that "Sol Iris does not have a habitual residence within the
meaning of the Convention."(Respt.’s Post-Hr’g Mem.17).
While Sol Iris may have had multiple
habitual residences, there was no question that at least one of those
residences had been Canada (the other potentially being South Korea).
Even Respondent's version of the story tacitly acknowledged that between
August 2004 and May 2005, Sol Iris was a habitual resident of Canada.
Moreover, the 2004-05 period is not the first time that Sol Iris could
be considered a habitual resident of Canada, as she spent the first 16
months of her life in that country as well. Of course, the Court
recognizes that Sol Iris also spent considerable time in South
Korea with either or both of her parents--from July 2002 until August
2003 and again from November 2003 until August 2004--but this does not
mean that as of August 2005 she had no habitual residence. Thus, the
facts of this case did not support Respondent's claim.
The Court found that Petitioner had
met her burden of showing that Sol Iris was a habitual resident of
Canada just before her visit to New York.
There was no dispute that Petitioner
was exercising her rights of custody at the time of the alleged
retention. Furthermore, petitioner made a prima facie case that her
custody rights were aggrieved.
The Court held that to establish a
consent defense, respondent must establish by a preponderance of the
evidence that petitioner had the "subjective intent" to permit
Respondent to remove and retain the child for an indefinite or permanent
time period.
Respondent did not remove Sol Iris
from Canada. Petitioner brought her to Respondent in New York. The Court
found that Petitioner had the subjective intent to permit respondent to
retain Sol Iris in New York. This intent was formed when Respondent and
Petitioner met in Toronto in April 2005 and agreed that Sol Iris would
live with Respondent in New York should he be accepted into Columbia Law
School. There was no apparent time limit to this consent.
The Court's finding rested not just on
a credibility assessment of Respondent's and Petitioner's testimony
about an April 2005 meeting, but also on the other evidence that placed
that meeting in its proper context. There was other credible evidence
that petitioner herself wanted to live in New York when she was done
with law school. Petitioner had spent the preceding summer working and
living in New York. Having become enamored with the apparently lucrative
lifestyle of a New York lawyer, Petitioner engaged in a scorched earth
effort to find employment in New York's many law firms. There was
evidence that Petitioner had imagined herself living in New York several
years before attending the University of Toronto. Thus, the April 2005
agreement between Petitioner and Respondent regarding Sol Iris becoming
a New Yorker was not an snap decision, but was part of a deliberate, if
not direct, path that Petitioner intended to take to New York.
Based largely on the Court's
assessment of the credibility of the witnesses, the Court found that
Respondent has met his burden of showing by a preponderance of the
evidence that Petitioner consented to the child's removal and retention
as of August 2, 2005.
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