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In Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) Petitioner Oleg
Yuriyovich Khalip (Petitioner) sought the return of his two minor
children, claiming that the children's mother, Respondent Alla
Viktorivna Khalip, a/k/a Alla Viktorivna Galkin, (Respondent),
wrongfully removed them from the Ukraine to Michigan. Petitioner was
born in 1964 in the Ukraine and was a citizen and resident of the
Ukraine since his birth. Respondent was born in 1977 in the Ukraine. She
was a native and citizen of the Ukraine, where she resided until June
11, 2010. Petitioner and Respondent were married on January 25, 2002.
Their two children were born in the Ukraine; IOK in 2002 and KOK in
2003. On November 20, 2009, Petitioner and Respondent divorced; a
custody agreement was not reached during the divorce proceedings. On May
11, 2010, Petitioner signed a notarized application, which gave consent
to Respondent to permanently move IOK and KOK to the United States. On
June 1, 2010, Petitioner signed a notarized application revoking his
consent because, according to Petitioner, Respondent breached an oral
agreement related generally to the upbringing of the children and their
permanent residence after the age of 16. According to Petitioner, he
personally served the revocation application on Respondent on June 8,
2010. In support, he proffed three affidavits from witnesses who said
that they overheard the conversation between Petitioner and Respondent.
Respondent disputed that she was ever served with Respondent's
revocation. On June 10, 2010, Respondent moved to Michigan with IOK and
KOK, where they permanently resided since. According to Petitioner,
Respondent picked up the children from school on June 10, 2010, and
secretly took them to Michigan without Petitioner's knowledge. According
to Respondent, Petitioner agreed to the move. Respondent asserted that
upon their arrival in Michigan, she provided Petitioner with telephone
and email contact information. She said that the children had regular
contact with Petitioner via phone and video chat and that Petitioner
visited them twice in Michigan within two months. Petitioner did not
admit or deny the visits. On June 14, 2010, Respondent remarried to
Leonardo Alex Galkin (Galkin). Respondent, Galkin, and the two children
now lived together in Ann Arbor, Michigan.
The Court observed that under Ukrainian law, each spouse has equal
rights and obligations in the marriage and family. Article 51, Ukraine
Constitution. The Family Code of Ukraine establishes the equal rights
and duties of the parents with regard to a child whether they were
married or not. Article 141, Ukraine Family Code. Particularly, a
divorce does not influence on the extent of the parental rights and
duties. A child's residence under the age of ten shall be determined by
the consent of his or her parents. Article 160, Ukraine Family Code. If
a mother and a father who live separately have not come to agreement in
the question where the minor children should live, their dispute may be
resolved by a court. Article 161, Ukraine Family Code. Finally, if one
of the parents or any other person willfully, without consent of another
parent or another persons, with whom the minor child lived according to
the law or by the court decision, change the place of his or her
residence, also by means of abduction, a court, upon application of the
interested person, has the right to deliver immediately the decision on
depriving the child and his or her return to the last place of
residence. Article 162, Ukraine Family Code.
On July 7, 2010, a Ukraine district court entered a decision in
response to Petitioner's consent revocation application, which certified
Petitioner's revocation and held that Respondent had illegally taken the
children without Petitioner's consent. The Ukrainian appeals courts
affirmed the lower court's decision, after which the Ukranian district
court ordered immediate taking of the children. On February 2, 2011,
Respondent appealed to the Highest Specialized Court of Ukraine. The
high court accepted the appeal, effectively staying the lower court's
rulings.
On September 3, 2010, Petitioner filed the petition. On March 9,
2011, the Court heard oral argument on the petition. On March 23, 2011,
the Court interviewed the children in chambers. Each articulated the
reasons that they do not want to return to the Ukraine: generally,
because they recalled that the Ukraine was dirty and preferred the
United States, which they said was cleaner and bigger. KOK stated that
she did not want to be without her mother. Petitioner moved the Court to
appoint an independent psychologist to interview the children, and the
Court ordered a psychologist to "determine and report to the Court and
both parties whether or not the children have attained an age and degree
of maturity for the Court to take account of their views." If the answer
to the first question was "yes," the psychologist was further ordered to
"determine and report the children's views regarding returning to the
Ukraine to live." The psychologist's report was filed with the Court,
and both parties, on April 19, 2011. In response to the Court's first
question, the psychologist stated: In my professional opinion, speaking
as a psychologist, neither child (IOK or KOK) is at his or her present
age and stage of cognitive and emotional development capable of
conducting a mature (in the sense of: thoughtful, rational, and
reasonably balanced and comprehensive) analysis of his or her own best
interests with respect to the question of returning to live in the
Ukraine with their father.
Respondent conceded that the Ukraine, where the children were born
and had always lived, was the habitual residence of the children prior
to their removal. To demonstrate that he was exercising valid custody
rights at the time the children were removed to Michigan, Petitioner,
inter alia, cited his consent revocation application and the decisions
from the Ukraine district and appellate courts, which certified the
revocation and ordered the children's return. Respondent said she did
not wrongfully remove the children because Petitioner consented to the
children's permanent change of residency, relying on the May 11, 2010,
consent application. She asserted that she was not aware of Petitioner's
June 1, 2010, revocation at the time that she moved with the children on
June 10, 2010. Based on the evidence, particularly the consent
revocation document, which was notarized before Respondent moved with
the children, the court held that Petitioner submitted sufficient
evidence to show that at the time the children were removed he was
exercising his custody rights. Further, the surreptitious nature of
Respondent's move with the children--without Petitioner present and
executed in an unplanned manner by picking up the children from school
without the Petitioner's knowledge or that of the children's
caretaker--weighed in favor of Petitioner's assertion that Respondent
moved without his consent. Finally, even if Respondent was not aware of
the revocation, it did not take away from the fact that Petitioner
exercised his rights by expressly revoking his consent in a notarized
writing, which he then filed in the Ukranian courts for certification.
This was not a case where Petitioner simply changed his mind. Thus,
Petitioner established by a preponderance of the evidence that the
children were wrongfully removed. Respondent argued that Petitioner
consented to the removal when he signed the consent application, and
that he subsequently acquiesced in the removal of the children when he
visited them in Michigan on two occasions. In response, Petitioner
argued that he did not consent to the children's removal and again
profferred the consent revocation document and the Ukranian district and
appellate court decisions to support his assertion. On balance, the
evidence weighed in Petitioner's favor. Particularly, the consent
revocation document and the Ukranian district and appellate court
decisions persuaded the Court that Petitioner was actively exercising
his custodial rights before and after the children were removed. Also,
the manner in which the children were removed supported the inference
that Petitioner did not consent to the children's removal. Petitioner's
visits to Michigan and communication over email and through video chat
failed to demonstrate that he acquiesced in the removal. The Court also
found that IOK and KOK had not reached the requisite level of maturity
that a Court should consider their views. Accordingly, the Court found
that the age and maturity defense did not apply.
The Petition was granted and it was ordered that the parties'
children, IOK and KOK, be returned to the Ukraine, pursuant to the
Convention and ICARA. However, in light of Respondent's May 13, 2011,
supplemental filing, submitted on the eve of the Court's decision, the
Court stayed the effectiveness of this decision for 30 days. The Court
recognized that the July 7, 2010, decision from a district court in the
Ukraine, which ordered the immediate return of the children appeared to
have been effectively stayed by the Highest Specialized Court of
Ukraine. In the Ukraine, "High Specialized Courts shall consider
cassation complaints of respective court jurisdiction; analyze, study,
and cumulate court practice; assist lower courts to ensure identical
application of Constitutional norms and laws in court practice; perform
other functions." Martindale-Hubbell Law Digest, Ukraine, 11 (2008). The
Highest Specialized Court of Ukraine "ruled": (1) [t]o start cassation
proceedings, concerning the claim of [Petitioner] towards [Respondent]
... concerning separation of the children, their return to the permanent
place of residence to Ukraine and determination of the place of
residence of the children with [Petitioner]"; (2) [t]o suspend execution
of decision of Leninskiy district court of Zaporizhya city dated July
07, 2010 till termination of the cassation proceedings of the case"; (3)
"[t]o demand the mentioned civil case from Leninskiy district court of
Zaporizhya city"; and (4) "[t]o send the copies of the cassation appeal
and the enclosed materials of the case to the persons who participate in
the case[,] to explain their right to file an objection to cassation
appeal till May 20, 2011."
Based on the above ruling, the nature of the future proceedings in
the Ukraine courts was not altogether clear. As it related to the
present petition, under Article 15 of the Convention: judicial or
administrative authorities of a Contracting State may, prior to the
making of an order for the return of the child, request that the
applicant obtain from the authorities of the State of the habitual
residence of the child a decision or other determination that the
removal or retention was wrongful within the meaning of Article 3 of the
Convention, where such a decision or determination may be obtained in
that State. The Central Authorities of the Contracting States shall so
far as practicable assist applicants to obtain such a decision or
determination. The Court should also consider the "length of time it
will take to obtain the required documentation." Hague International
Child Abduction Convention; Text and Legal Analysis, Department of
State, March 26, 1986, at 14-15. In the interest of comity, the Court
gave considerable weight to the Ukraine court decisions in deciding
whether the children were wrongfully removed and should therefore be
returned to Petitioner; the Highest Specialized Court's decision is no
different. On the other hand, the Court has an obligation under the
Convention to make an expeditious decision. With these conflicting
considerations in mind, effectiveness of this decision was stayed for 30
days to allow the parties the opportunity to further illuminate the
status of the legal proceedings in the Ukraine, including the time it
will take the courts in the Ukraine to resolve the pending proceedings.
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