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In David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam.
Ct. 1991) the parties, who were Canadian nationals, entered into a
separation agreement before he birth of their second child. Pursuant to
the agreement, the wife had custody of the first child. The agreement
provided that the wife "shall make the son available to the husband for
visitation within the Metropolitan Toronto vicinity." The agreement was
silent as to the custody and visitation of the second child, who was not
born at the time of the agreement. In 1989, the Supreme Court of Ontario
issued an order preventing the wife from removing them from Ontario and
from obtaining passports for the children. On October 5, 1989, the wife
and children left Ontario and the husband followed the procedures set
forth in the Hague Convention to secure the return of the children. On
December 5, 1989, the Ontario Ministry of the Attorney General forwarded
an application for the return of the children to the United States
Department of State. In September, 1990, the Supreme Court of Ontario
held that the wife wrongfully and improperly removed the children from
the Ontario jurisdiction and avoided or refused service, although duly
served with the 1989 order which directed her not to leave. In November,
1990, the Supreme Court of Ontario issued a similar order adding that
the wife was withholding the children from the husband, who was entitled
to custody and access to the children. In December, 1990, the husband
moved for enforcement of this order in New York. |
