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In Matovski v Matovski, 2007 WL 2600862 (S.D.N.Y.)
Petitioner Damjan Matovski, an Australian national, petitioned for the
return of his three children to Australia. The children-Angelina, age
12, Anita, age 11, and Anthony, age 5-were removed from Australia and
brought to the United States on May 28, 2005, by their mother,
respondent Christina Matovski, a U.S. citizen, without their father's
knowledge or consent. The couple was still married, and there were no
custody orders in place from any court with respect to the children. The
petition was filed on June 6, 2006. As authorized by Rule 43(a),
Fed.R.Civ.P., petitioner, who had been denied an entry visa into the
U.S., testified via a live video link from Australia. Respondent, her
parents and the court-appointed expert testified in open court. The
District Court found that that the petition in this case was filed more
than one year after the date on which respondent wrongfully removed the
children from their home in Australia and that the children were now
settled in their new environment in the United States. It also concluded
that the two older children, Angelina and Anita, had attained an age and
degree of maturity at which is appropriate to take account of their
views on repatriation and they both objected to being returned to
Australia. The petition was denied. Respondent testified that she was
the victim of sustained and severe domestic violence by petitioner
throughout their relationship. She testified to having been punched,
slapped, kicked or struck with household objects on at least 50 separate
occasions, approximately 45 of which occurred after they were married.
This testimony of physical abuse was credible and corroborated, in part,
by periodic and contemporaneous reports to the police, beginning in
1996. On three occasions, respondent stayed in domestic violence
shelters with her children in Australia to escape the abuse. Respondent
testified that the spousal abuse took place in front of their children
and family friends. As of the time of trial, the children had been
living in the United States for more than two years. They lived with
their mother, their maternal grandparents and one of their uncles at
their grandparents' home in New City, New York. The Court noted that
Article 12 creates an exception to mandatory repatriation if more than
one year elapses between the wrongful removal or retention and the
commencement of proceedings for the child's return, and the child has
become well-settled in its new environment."To the extent that Article
12 permits the courts of a party to the Convention to deny repatriation
on this basis, it effectively allows them to reach the underlying
custody dispute, a matter which is generally outside the scope of the
Convention."Blondin II, 238 F.3d at 164 (citing Explanatory Report, P
107 ("[I]n so far as the return of the child is regarded as being in its
interests, it is clear that after a child has become settled in its new
environment, its return should take place only after an examination of
the merits of the custody rights exercised over it-something whichis
outside the scope of the convention.")). Notwithstanding the fact that
Article 12 directs courts to consider matters that are outside the
Convention's usual scope, it is not an invitation for courts to decide
which parent is the "better" parent, or which country offers a more
comfortable material existence, and deny repatriation on that basis. See
Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998), cert. denied,525 U.S.
1158 (1999); Koc v. Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). Rather,
to find that a child is now settled in its new environment, the
proponent of the exception must produce "substantial evidence of the
child's significant connections" to the new environment. See Zuker v.
Andrews, 2 F.Supp.2d 134, 141 (D.Mass.), aff'd,181 F.3d 81 (1st
Cir.1998); In re Robinson, 983 F.Supp. 1339, 1345 (D.Colo.1997) (quoting
51 Fed.Reg. at 10,509);see also Koc, 181 F.Supp.2d at 152. ICARA
establishes that the respondent bears the burden to prove the Article 12
exception by a preponderance of the evidence. 42 U.S.C. s
11603(e)(2)(B). The parties stipulated that petitioner has established a
prima facie case of wrongful removal or retention under the Hague
Convention. Article 12 of the Convention allows a court to deny a
petition if the respondent shows, by a preponderance of the evidence,
that the children are "now settled in [their] new environment." The
exception only applies if the proceedings for the return of the children
were commenced more than one year after the date of the wrongful removal
or retention. ICARA clarifies that "the term 'commencement of
proceedings', as used in [A]rticle 12 of the Convention, means ... the
filing of a petition" in a civil action for the return of the child. 42
U.S.C. s 11603(f)(3). The proceedings in this case were commenced on
June 6, 2006, the date on which the petition was filed. The parties
dispute how the initial date of the wrongful removal or retention ought
to be established. Respondent contends that the one-year period began to
run on May 28, 2005, the date on which she removed the children from
Australia and brought them to the United States. Petitioner argues that
the relevant "start date" for the computation of the one-year period is
June 7, 2006, because that is the date on which, according to the
petition, he allegedly received a telephone call from respondent
informing him that she was in New York with the children and would not
return to Australia. The Court held that the one-year period should be
measured from the date on which respondent removed and retained the
children away from their home in the country of their habitual
residence, in breach of petitioner's custody rights and without his
consent. That occurred on May 28, 2005, the date the children traveled
from Australia to the United States, which was more than one year prior
to the filing of the petition. Petitioner cited In re Cabrera, 323
F.Supp.2d 1303 (S.D.Fla.2004), for the proposition that the one-year
period does not commence until "the Petitioner became aware of the
Respondent's true intention not to return."Id. at 1312-13. The Court
held that Cabrera was inapposite because it illustrates how the one-year
period should be computed in cases where a child is removed from the
country of habitual residence with the consent of both parents. In this
case, by contrast, the children were abducted from their country of
habitual residence without petitioner's knowledge or consent and brought
to America. As soon as that occurred, all of the elements of wrongful
removal or retention were established. Petitioner alternatively argued
that the one year-period should be equitably tolled until respondent
confirmed to petitioner where she was holding the children. The court
noted that while one United States Circuit Court of Appeals has
concluded that equitable tolling applies to the one-year period in
Article 12, see Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.), cert.
denied,543 U.S. 978 (2004), district courts addressing this question
have not reached a consensus, although a majority have agreed that
tolling applies. The Court concluded that equitable tolling does not
apply to the "now-settled" exception of Article 12 and even if equitable
tolling were available under Article 12, this would be a poor case for
its application. While the petition states that petitioner was first
informed by respondent of her intention to remain in the U.S. with the
children on June 7, 2005, the evidence showed that he had constructive
knowledge of respondent's abduction of the children and intent to remain
in the U .S. prior to that date. The court pointed out that as explained
previously, in order to find that the children are "now settled" in
their environment, respondent must prove more than a "comfortable
material existence." Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998);
see Koc, 181 F.Supp.2d at 152. Respondent must marshal "substantial
evidence of the child's significant connections" to New York. See Koc,
181 F.Supp.2d at 152;see also Zuker, 2 F.Supp.2d at 141;Robinson, 983
F.Supp. at 1345. Several district courts have endorsed the consideration
of the following factors: [ (1) ] the age of the child, [ (2) ] the
stability of the child's residence in the new environment, [ (3) ]
whether the child attends school or day care consistently, [ (4) ]
whether the child attends church regularly, [ (5) ] the stability of the
mother's employment, and [ (6) ] whether the child has friends and
relatives in the area. Arboleda v. Arenas, 311 F.Supp.2d 336, 343
(E.D.N.Y.2004) (quoting Koc, 181 F.Supp.2d at 152);see also Silvestri v.
Oliva, 403 F.Supp.2d 378, 387-88 (D.N.J.2005) (quoting same). There was
substantial, persuasive evidence that Angelina, Anita and Anthony had
significant connections to their new environment in New York. The
children lived in a stable environment; they lived in the same home
since arriving in New York, and there was no evidence that this will
change soon. The children had been in school consistently with the two
older children having attended school with the same classmates for two
years. Anita and Angelina were actively involved in extracurricular
programs at school: Anita in the Ladies' and Gentlemen's Club, and
Angelina in the Ladies and Gentlemen's Club and the Newspaper Club. All
three children participated in Albanian dancing at the Albanian Catholic
Church. The children all enjoyed school and had many friends whom they
saw frequently, sometimes daily. In addition to socializing and playing
with friends, the children were very attached to their extended family
living in New York, including cousins, aunts, uncles, great uncles and
their grandparents. While their mother had not been consistently
employed since the family arrived in the U.S., she had been steadily
employed since February 2007. In this case, the importance of
respondent's consistent employment was diminished due to the fact that
they were financially supported by their grandparents, with whom they
lived. The evidence was that the overall financial stability of the
family was reasonably assured. The court held that each child was "now
settled" in their new environment as that term is used in Article 12 of
the Convention. In addition, based upon its interviews with the children
and the expert report of Dr. Gordon, the court concluded that Angelina
and Anita hade attained an age and degree of maturity at which it is
appropriate to take account of their views on repatriation and they
object to being returned to Australia. As to them, the petition was
denied on this alternative basis. Angelina, who was 12 years old,
presented as mature for her age. She has memories of her life in
Australia and her preference was the product of a realistic comparison
between the two. She explained that she wished to remain in New York
because she has more family and friends here, and enjoys a more stable
life here and is concerned about uncertainties that she would face in
Australia. This reasoning reflects a mature understanding of her
circumstances. Dr. Gordon, based on his interviews with Angelina, found
that her perceptions of her parents revealed an ability to honestly
assess both their good and bad qualities, and did not reflect an
idealization of respondent or devaluation of petitioner. This conclusion
was consistent with the courts finding that Angelina's preference was
not unduly influenced by either parent, but was instead the product of
independent reasoning and thoughtful consideration reflecting her
maturity. Anita, 11 years old, presented a closer question with respect
to her degree of maturity, but the court also concluded that she was of
an age and sufficient maturity to take account of her preference to
remain in New York. The court concluded that her preference was sincere
and based upon a rational assessment of the facts, and is not unduly
influenced by either parent. When asked whether she would prefer to live
in Australia with her mother if her father was not present in Australia,
she maintained that she would still prefer to live in New York because
she has more friends and family here. Like Angelina, Anita had memories
of her life in Australia, and her preference to remain in New York was
based on a meaningful evaluation of her circumstances reflecting her
maturity. Anthony, who was 5 years old, did not exhibit sufficient
maturity to apply the Article 13 exception to him.
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