In Lachman v Lachman, Not Reported in F.Supp.2d, 2008 WL 5054198 (E.D.N.Y.) the Court granted Petitioner Eric Lachhman’s petition against respondent Roseanna Lachhman for an order directing the return of his daughter, C.L. (the "child") to England Respondent submitted no affidavit in connection with this matter and did not testify at the hearing. Petitioner and respondent were married on June 20, 1999 in Guyana. From August or September of 1999 until July of 2006, petitioner and respondent lived together at the same residence at 15A Craignish Avenue, London, England, which petitioner purchased approximately five years before meeting respondent. In 2003, the child was born to respondent and petitioner in Croydon, London, England. On May 24, 2006, respondent filed for divorce. In July of 2006, petitioner and respondent agreed to separate, and petitioner moved out of 15A Craignish Avenue to live nearby with his parents in Camberwell, London. Respondent and the child continued to live at 15A Craignish Avenue until respondent took the child to the United States. Respondent and petitioner agreed that the child would stay with petitioner on Saturdays and Sundays, and that petitioner could call the child throughout the week. The child remained registered with her local general practitioner and health care providers in London, and still had a place in her nursery school program there. Petitioner last saw and spoke to the child in the United Kingdom on October 22, 2006. On December 15, 2006, a neighbor at the Craignish Avenue apartment informed petitioner that respondent had taken the child to the United States, and that respondent would no longer permit petitioner to see the child. Petitioner did not agree to the child's permanent relocation to another country, and the child's recent removal to the United States was effected without his knowledge or consent. Petitioner submitted his Hague Convention application on May 17, 2007.The court found that respondent did not intend to return the child to the United Kingdom voluntarily.

The Court noted that first, petitioner must show that respondent's removal of the child from the United Kingdom to or retention in the United States constituted removal from or retention of the child outside the State in which she was "habitually resident." The Hague Convention does not itself provide any definition of "habitually resident." However, the Second Circuit has held that analysis of a child's habitual residence begins with consideration of the relevant intentions, normally "the intent of the child's parents or others who may fix the child's residence." Gitter v. Gitter, 396 F.3d 124, 131-32 (2d Cir.2005). Where the parents disagree as to the place they intended to be the child's habitual residence, it is the court's task to determine the intentions of the parents as of the last time that their intentions were shared. Parental intent alone cannot establish the child's habitual residence, however; courts must also inquire whether the available evidence "unequivocally points to the conclusion that the child has acclimatized to [a] new location and thus has acquired a new habitual residence" notwithstanding the parents' intentions. To determine if a child has acclimatized to her new location, courts "must consider if requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed. Only in relatively rare circumstances will the child's acclimatization to a new location be so complete that serious harm to the child can be expected to result from compelling [her] return to the family's intended residence." Daunis v. Daunis, 222 Fed. Appx. 32, 34 (2d Cir.2007) (internal citations and quotation marks omitted). Therefore, "courts should be 'slow to infer' that the child's acclimatization trumps the parents' shared intent." Gitter, 396 F.3d at 134 (citing Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir.2001)). The Court found that the evidence showed that the child was habitually resident in the United Kingdom before her removal to the United States. By living together with the child in London from the time of the child's birth until July of 2006, petitioner and respondent demonstrated their mutual intent that the child's habitual residence be the United Kingdom. Following petitioner and respondent's separation in July of 2006, petitioner and respondent mutually agreed that the child would remain in England, staying with petitioner on weekends and with respondent during the week. This arrangement demonstrated continued mutual intent that the child reside in the United Kingdom. Thereafter, sometime in late 2006, respondent took the child from the United Kingdom to the United States, where both respondent and the child have since spent the majority of their time. Sometime in late 2006, respondent may have intended to change the child's habitual residence from the United Kingdom to the United States, despite respondent's statement to petitioner that she intended to bring the child back to the United Kingdom when respondent's health improved. Petitioner's submissions showed that even if respondent intended to change the child's habitual residence in late 2006, her intent diverged from petitioner's intent at that time. When petitioner's and respondent's intents last converged, the evidence showed that they intended the child's habitual residence to be the United Kingdom. Nor was there evidence "unequivocally point[ing] to the conclusion" that the child had acclimatized to her new location in the United States, notwithstanding her parents' intentions. At most, the child had spent the better part of two years in the United States since her removal from the United Kingdom. Petitioner maintained telephone contact with the child, and the child demonstrated a desire to maintain contact with petitioner despite instructions from respondent's family not to answer his phone calls. In addition, the child appeared to have been moved to several different locations in the United States at various times, and has on occasion left the United States with respondent. Under these circumstances, the evidence did not unequivocally demonstrate that the child has acclimatized to her new location. Accordingly, petitioner established that the child was removed from or retained outside her habitual residence when respondent took her from the United Kingdom to the United States.

Petitioner claimed custody rights under English law pursuant to Section 2 of the United Kingdom Children Act of 1989 (the "Children Act"). Under Section 2 of the Children Act, "[w]here a child's father and mother were married to each other at the time of his [or her] birth, they shall each have parental responsibility for the child." Children Act, ch. 41, Part I, s 2(1). " 'Parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Id. s 3(1). Under the Hague Convention, "rights of custody" includes "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention Art. 5(a). A plain reading of the definitions of "parental responsibility" and "rights of custody" led to the  conclusion that the former includes the latter. Accordingly, finding that petitioner and respondent were validly married at the time of the child's birth, the court concluded that for the purposes of the Hague Convention, petitioner established that he had on-going de jure custody of the child under English law until a court of competent jurisdiction orders otherwise. This conclusion is supported by the conclusions of other American courts.See, e.g., Morgan v. Morgan, 289 F.Supp.2d 1067, 1069 (N.D.Iowa 2003) (finding that showing of parental responsibility under Section 2 of Children Act was sufficient to show custody rights under English law for purposes of Hague Convention); In re Robinson, 983 F.Supp. 1339, 1342 (D.Colo.1997) (same).

Having established that he had custody rights over the child, petitioner  next had to  establish by a preponderance of the evidence that the child was removed in breach of those custody rights. Petitioner claimed that respondent violated the English Child Abduction Act of 1984 (the "Abduction Act") when she removed the child to the United States. See Pieper Decl. Ex. G (copy of Abduction Act). The Abduction Act provides that it is a criminal offense for a parent to take a child out of the United Kingdom for more than one month without the consent of the other parent, absent court order in favor of the first parent. Abduction Act, ch. 37, Part I. The evidence showed that respondent took the child from the United Kingdom to the United States for more than one month without the child's father's consent. Accordingly, petitioner established that the child was removed from the United Kingdom in breach of his custody rights. The court also concluded that petitioner has established that he would have been exercising custody rights within the meaning of the Hague Convention at the time the child was removed from the United Kingdom, but for the child's removal.

Respondent argued that the Court need not order the return of the child to the United Kingdom because of her father's alleged history of domestic violence. The court rejected this argument because there wasno evidence that petitioner ever harmed the child and petitioner testified that an English court determined that he was not guilty of  physical abuse. Respondent also argued that the court need not order the return of the child because the child was well settled in her new environment in the United States. Article 12 of the Hague Convention provides that where proceedings have been commenced more than one year after the date of wrongful removal or retention, a court shall order the return of the child "unless it is demonstrated that the child is now settled  in its new environment." Having already determined that the available evidence did not unequivocally point to the conclusion that the child has acclimatized to her new location in the United States, neither did the court find that respondent has established by a preponderance of the evidence that the child was settled in the United States. Other than conclusory statements in her brief, respondent had not offered any evidence showing that the child is settled in her new environment.