David B. v. Helen O., 164 Misc. 2d 566, 625 N.Y.S.2d 436 (Fam. Ct. 1995)

In David B. v. Helen O., 164 Misc. 2d 566, 625 N.Y.S.2d 436 (Fam. Ct. 1995) the father alleged that the parties two minor children were wrongfully retained by their mother in the United States. Petitioner lived in the United Kingdom and sought the return of the children to that country. The mother objected to the return and sought dismissal of the petition on the ground that the children were not habitual residents of the United Kingdom as that term is used in the Hague Convention but rather were settled in Nigeria. An evidentiary hearing was held to determine the children= s "habitual residence." After the hearing the family court determined that it was the father= s burden to establish by a preponderance of the evidence that the minor children were wrongfully removed or retained within the meaning of the Hague Convention.

The court found that the father was a British National and the mother is a dual British and Nigerian National. The parties were married in December 1985 in England. The two subject children were born in England and the family resided together in England until the parties separated in July 1991 due to marital difficulties.

In July 1991 the mother and the two children went to Nigeria. The father testified that it was his understanding that the mother was taking the children to Nigeria for a visit with her parents and family who reside there. He testified that although the trip was open ended he believed that the mother and the children would return to England within three months. He also contended that a round trip ticket had been purchased.

The mother testified that in July 1991 she and the father agreed to go their separate ways and agreed that the children would remain with her. She also testified that her intention in going to Nigeria was to start a new life there. She claimed that there was no time limit whatsoever on her intended stay.

The family court credited the mother= s testimony with respect to her intentions in going to Nigeria in July 1991. The court also held that credibility on this point was undercut by his behavior and other factual developments in the subsequent months. Shortly after the mother= s arrival in Nigeria, the father traveled to Nigeria for one month. During that time, in August 1991, the mother signed and the father cosigned a lease for a four bedroom home for the mother and the two children in Nigeria. The lease provided for a term of two years and contained an option to renew for another two years. The rent was fully paid in advance for three years. Thereafter in September 1991 the father sent a trunk box from England to the mother in Nigeria containing items, including her and the children= s clothing and variety of other personal possessions.

The testimony established that the father went to Nigeria for another visit in December 1991 for three weeks. Three months later in a letter dated in March 1992 the father addressed the controller of immigration services in Nigeria requesting that the mother and the children be allowed to apply for residence permit to live there.

In April 1992 the mother and the two children returned to England. She testified that she did so to obtain a divorce from the father. The parties were divorced in October 1992 pursuant to a decree issued by the Watford County Court, England. The mother and the children remained in England for nine months before returning to Nigeria. She testified her purpose in remaining in England was to attend college. During this time she attended college and the children were enrolled in school. They lived in an apartment in South London not far from the father= s home.

After the school year and after experiencing difficulties at college in June 1993 the mother went back to Nigeria with the children. The father testified that he consented to her going to Nigeria again and that it wasn= t defined exactly when the return would be. In Nigeria the mother and the children resumed their occupancy of the home that she previously leased. The children attended school in Nigeria during 1993B 1994 term.

In August 1994 the mother and the children again went to England. She testified that the father had ceased sending her necessary financial support. They remained in England for approximately seven weeks during which time the mother applied for public assistance and she and the children stayed at the homes of various friends and relatives and in a hotel. The mother did not make any arrangements for a more permanent living accommodations in England. The children were not enrolled in school in England for the full term. Although the mother did not renew the lease for her home in Nigeria most of her personal belongings remained in Nigeria and at the home of her uncle. She and the children left England and arrived in New York in September 1994, thus beginning the chain of events that led to this proceeding. The father testified that he consented to the mother and the children going to New York for a holiday period because she needed a break. He stated that he hoped the visit to New York would last for months at most but he was not sure if it would last longer.

In December 1994 the father came to New York. He testified that the purpose of his trip was to find his children and return with them to England. He took various steps which culminated in the filing of this petition for return pursuant to the Hague Convention. The father stated that if the children are ordered to be returned to England it is his intention to file in England for legal and physical custody.

The family court noted that under Article III of the Hague Convention the father must show that immediately before the children= s removal they were habitually residents in a contracting state. Both the United Kingdom and the United States are contracting states to the convention Nigeria is not. Because the father seeks the children= s return to England he must prove that the children were habitual residents of the United Kingdom immediately prior to their removal to the United States.

The family court determined that the evidence supported the mother= s argument that the children were habitual residents of Nigeria. Nigeria was the place where, prior to the children= s removal to the United States, there was a sufficient degree of continuity to be properly described as settled and therefore, the habitual residents under the Hague Convention. The court further noted that nothing in this opinion should be construed in any way as expressing any view concerning the ultimate substantive merits of the custodial conflict between the parties. That issue, if not resolved by the parties themselves, would have to be resolved in accordance with jurisdictional principles and applicable law without resort to the Hague Convention.