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In Sheikh v. Cahill, 145 Misc. 2d 171, 546 N.Y.S.2d 517 (Sup. Ct.
1989) Justice Rigler of the Supreme Court, Kings County, denied the
mother= s application for
custody of the parties= child
and directed the return of the child to England. In 1978, in a
proceeding in which the father was a party, the English court ordered
that the child= s custody was
to be with the mother in England and that the father have visitation in
the United States. As a result of the mothers failure to return the
child to England, an order was issued in April, 1989 from the English
High Court of Justice, finding a wrongful retention within the meaning
of the Hague Convention. An initial joint custody decree was made in New
York in 1984. Justice Rigler applied the Convention since the child was
under 16 and lived in England for 21/2 years, finding the child to have
habitually resided abroad. The court concluded that the child had been
wrongfully detained in N.Y. in violation of the new order for less than
a year necessitating his return to England.
The Family Court, Kings County held that both children in this case
were "habitually resident" in Ontario immediately prior to their removal
and that the husband was exercising his rights, as to his son, and would
have exercised his rights as to his daughter, but for her removal. It
held that the wife acted in contempt of the Ontario Supreme Court=
s order, by leaving the country. The husband had an equal right to
custody of the parties=
daughter because the separation agreement did not include any
arrangement as to her custody. The Family Court held that the Ontario
Supreme Court orders of September, 1990 and November, 1990 constituted a
declaration that the removal or retention of the children was wrongful
within the meaning of the Hague Convention. Family Court gave full faith
and credit to the orders of the Ontario Supreme Court, including the
findings made and held that the husband has met his burden of showing,
by a preponderance of the evidence, that the removal of these children
from Ontario was "wrongful" and that the wife did not met her burden of
showing, by a preponderance of the evidence, that the children were so
settled in their new environment, in Brooklyn, that they should not be
uprooted and returned to Ontario. Under the circumstances presented
herein, the Family Court did not find the husband=
s proceeding to return the children was untimely nor did the Court find
that the husband acquiesced to the removal of the children. The Court
held that both children should be returned to Ontario forthwith, where a
preliminary hearing could be held to determine the issues of interim
custody and visitation.
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