Bandzius v. Sulcaite

Filing 40

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 10/15/2018: For the reasons set forth in the accompanying Memorandum Opinion and Order, petitioner Albertas Bandius's petition for return of his children to Lithuania 1 is denied. Enter Judgment Order. Civil case terminated. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALBERTAS

,

)
)
)
)
)
)
)
)
)

Plaintiff-Petitioner,
v.
.
Defendant-Respondent.

No. 18-

-3811

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Petitioner Albertas

seeks the return to Lithuania of his two sons, who have lived
Respondent Aiste
o

.
31,

a
, pursuant to the

the
the “

.S. No

law through

the

-

). As

relevant here, the

Mr.

, a resident of Lithuania, alleges that Lithuania is the
Ms.

has wrongf

in
, Ms.
s

husband) testified. T

in camera, outside

. 1 Based on

e

parties, t
and that Ms.

retention of the

denies Mr.

here

is not

petition

.
BACKGROUND
I.

Facts
Petitioner Albertas

and Respondent Aiste

Ms.

Lithuania

visitation

granted Mr.

various

rights.
Lithuania,

Ms.

Mr.

testified that Ms.

would last for

1

Ms.

The parties dispute the question of
gave to

told

that the job position

when the threedenies

. Ms.

or

, though

.

Mr.

did not

to the

Ms.
applied
with the

the “June
“

)

in response to Ms.

n

-

-

.

-

Ms.
Ms.

soon
.

ating
.

3

ourt issued its non) regarding the
the

establish the

with Ms.

Mr.

th the

-

The order also laid out a
d abroad.

that

planned
reg

Id.

Mr.
appealed the

.
ng, Mr.

esiden

was

a
she did not intend

that Ms.
ren to Lithuania.

t revoked the
order and

se

for rehearing. T

and
did not address
.3
T

sided

. As of

,
)
.
English, and have
ban

, Mr.

and doing

. D.B. is also

either
with their father and their paternal
) or friends in Lithuania;

and

3

order was entered—
Ms.
the
at
Mr.

s request

urt

.

did not want to return to Lithuania

.
and preferred to

in

.
,

national parks
.
II.

Procedural History: Hague Petitions
wound

Lithuani

initiated
Mr.

filed his first Hague petition with

) 6 alleging that Ms.

.

pre

that, in view

“the departure of A.

Mr.

.
Ms.

order.
6

designate a “
rt. 6,

to
6

.

Th

of Lithuania forwarded
7
8

Nevertheless,
in

seek

. Notwithstanding his assertions

in his petitions to the Lithua

Nor does he argue that
Ms.

argues

in
, when h

and she

three

equired to return to Lithuania

. Id. at

7

forwarded
ention
. See
anoth
...
8

Mr.

hearing.
Mr.

7

DISCUSSION
an international

designed to deal with
Redmond v. Redmond

Abbott v. Abbott

8

).

notion that “a

Whallon v. Lynn
allows a parent

“requires

tries

to
. Redmond

. The
ather, it is designed to “restore the status

. Id.

Karkkainen v. Kovalchuk

.
To prevail in an

, a p
.

o believe that

is seeking
s.

8

Guerrero v. Oliveros

.
is wrongful where
d to a person, an institution

b) at the
3,

“i

not wrongful." Martinez v. Cahue
I.

.

Habitual Residence
the

where

on

was habitual

Martinez,

alleged

Redmond

.

). The pivotal issue

befo
when, in Mr.
to Lithuania

-

i.e. in

;
here

. Martinez,

.

The
that “

. . . . Martinez
for all available

the individual

and

Redmond

.

Martinez
B. and
.S
,
“
.
A.

Parental Intent

Redmond

Holder v. Holder
is no

Id.

“

Id. at
Mozes

Mozes v.

.
Ms.

testified that she began

g in the
.

Mr.

, when she

,

and did not
eafter.

huania. Mr.

, however, that he never

agreed to let the

and
.

an intent

that the parties never shared

habitual
Koch v. Koch,
an

to per

e.

Id. at 716. The father
Id. at

Id. at 716.

ot intend to
that “a

11

Mozes
-76)

Koch,

a
a

. The Seven

finding o

...
-

be forever . . . .
Koch,

Whiting,

The

applies to the

situation here.
in
Mr.
a sea-

and it is

in their
—

where the

—would be

the

.

intent, Koch

at

,

—

his

—provides
. See Guerrero v. Oliveros
hildren live in that

filed his

Hague Petition

alleged wrongful retention, in late

of Lithuania forwarded the petition to the
of the

Yet,

knew

would be futile; he wanted to wait

until Ms

to pursue a wrongful
. But

knew

, when he

filed a pleading in his suit against her

she
. See
“is not

goin

.
Mr.
huania

well after the three-

nstead of filing his
at the end of the threenother

return.
the

before filing his

while knowing that

did not intend to return

to Lithuania

, the depth of Mr.

13

questioned.
But even taking

his

. Redmond
Martinez

Martinez
Id. at

Id.
Id.

Martinez
ning of

-

Id.
did

until the decision of the court in these proceedings

, until f

would
and no further order
issued. 11
Martinez

parental intent is “less salie
,
on

11

nt has been

States as addressed below. See id.

B.

Acclimatization

T

ed

States

his or her
Redmond

Mozes

. The
.

-

oke

Ms.

were doing well in
were

ing

-

and karate.

,

tt
“

...

Martinez

Mr.
their lives in Lithuania. That is true
would “

, but
Id.

-

Martinez,

-

16

a retaining state

there.

s

in that regard to

note that

Whiting,
dispute—and

—that

in Lithuania.

were

the
, and well-adjusted to,

have

at all.

life in

Mr.

stated intent regarding the

given his
, the lesser
intent

was
habitual

—whether
—

of

.

17

II.

Mature Child Exception
ion

“

provides an additional ground for

The

ld

an age and degree
-intensive
“to

- -

Guerrero

Yang v. Tsui

“

“

t

Id.
Id.

opinion

Walker v. Walker
.
in camera

Though age is not dispositive,

the

are both at an age—

testified—
oth 13-

-old D.B. and 11-

during their interviews.

.B. were polite and
appeared to

See Anderson v. Acree
-

-

-

unders
-

18

-

–

throughout the interview. Simcox v. Simcox

.

, and took
it

.
As for the

opinions, D.B. and

obje
ed

-

“start all

See Yang

-

).

of their present
with their father and both

d.) D.B.
k to Lithuania,
. These were no

-

nt,
no

Ms.
that
. The

the
a

petition.
*

*

*
there is no question that

Notwithstanding Mr.
a
he
en to Lithuania.

John J. Tharp, Jr.