Khalip v. Khalip

Filing 39

ORDER denying 33 Respondent's Motion for Reconsideration. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

OLEG YURIYOVICH KHALIP,
Petitioner,
v.

Case No. 10-13518
HON. AVERN COHN

ALLA VIKTORIVNA KHALIP, a/k/a
ALLA VIKTORIVNA GALKIN
Respondent.
___________________________________/
ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION
I.
This is a petition for the return of two minor children to the Ukraine pursuant to the
Hague Convention on the Civil Aspects of International Child Abduction (the Convention)
and the International Child Abduction Remedies Act (ICARA). 42 U.S.C. §§ 11601-11610.
On May 17, 2011, the Court entered a memorandum and order granting the petition, but
staying effectiveness of the order for 30 days due to a pending decision in the Highest
Specialized Court of the Ukraine involving whether the children were wrongfully removed
under Ukranian law. (Doc. 31). The stay was set to expire on June 17, 2011. On June 14,
2011, Respondent filed a motion for reconsideration. (Doc. 33). In light of the filing, the
Court ordered a further stay pending the motion’s resolution. (Doc. 36). At the Court’s
request, Petitioner filed a response. (Doc. 37).
For the reasons that follow, Respondent’s motion will be denied.

II.
Motions for reconsideration are governed by E.D. Mich. LR 7.1(h) which provides
in relevant part:
Generally, and without restricting the court’s discretion, the court will not
grant motions for rehearing or reconsideration that merely present the same
issues ruled upon by the court, either expressly or by implication. The movant
must not only demonstrate a palpable defect by which the court and the
parties and other persons entitled to be heard on the motion have been
misled but also show that correcting the defect will result in a different
disposition of the case.
E.D. Mich. LR 7.1(h)(3).
III.
Respondent first argues that reconsideration is warranted because the Court’s
finding that the children were wrongfully removed from the Ukraine under the
Convention was improper due to the fact that the Ukraine courts are still determining
whether the children were wrongfully removed under Ukranian law. Respondent further
argues that the parties submitted conflicting affidavits related to the issue of wrongful
removal, which presents a disputed issue of material fact under the Fed. R. Civ. P. 56
summary judgment standard. Respondent’s argument lacks merit.
Relating to wrongful removal, the Court found as follows:
Based on the evidence, particularly the consent revocation document, which
was notarized before Respondent moved with the children, the Petitioner has
submitted sufficient evidence to show that at the time the children were
removed he was exercising his custody rights. Further, the surreptitious
nature of Respondent’s move with the children – without Petitioner present
and executed in an unplanned manner by picking up the children from school
without the Petitioner’s knowledge or that of the children’s caretaker – weighs
in favor of Petitioner’s assertion that Respondent moved without his consent.
See Friedrich, supra, at 1069 (relating to whether the petitioner consented to
removal, “the deliberatively secretive nature of [respondent’s] actions is

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extremely strong evidence that [petitioner] would not have consented to the
removal of [the child]”).
Finally, even if Respondent was not aware of the revocation, it does
not take away from the fact that Petitioner exercised his rights by expressly
revoking his consent in a notarized writing, which he then filed in the
Ukranian courts for certification. See Article 3 (removal of a child from one
country to another is wrongful when at the time of removal those rights were
actually being exercised, either jointly or alone, or would have been so
exercised but for the removal or retention) (emphasis added). In other
words, this is not a case where Petitioner simply changed his mind.
Thus, Petitioner has established by a preponderance of the evidence
that the children were wrongfully removed.
(Doc. 31, pp. 10-11).
The Court’s finding was not based solely on decisions from the Ukraine courts or on
affidavits relating to the nature of the children’s removal. Rather, the Court made its
determination based on a preponderance of the evidence, as required under the
Convention.

Thus, Respondent fails to meet the standard required to warrant

reconsideration on this ground.
IV.
Respondent next argues that reconsideration is warranted because the Court should
have found that the children, now 7 and 8, were not of an age and maturity such that their
views should be taken into consideration relating to their return to the Ukraine. See Article
13, Convention. Respondent says that the Court expressed its ambivalence on the
children’s maturity and that, in addition to considering the opinion of an independent
mutually agreed upon psychologist’s findings, the Court should have also relied on the
opinion of Respondent’s psychologist. Respondent’s argument lacks merit and is not welltaken.

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As to the children’s objections, the Court found as follows:
IOK and KOK have not reached the requisite level of maturity. Indeed, as
one would expect from children of this age, each articulated a natural desire to stay
with their mother in an environment that they have become accustomed to and in
which they are now comfortable. On the other hand, their stated reasons and
responses also reveal that they are not mature enough to understand the full scope
of this situation in order to prevent being returned. See Tsai-Yi Yang, supra, at 279
(upholding a district court decision which found that a ten year old was not of
sufficient maturity when she was unable to articulate “particularized objections to
returning to Canada, but rather [] indicated that she possessed a more generalized
desire to remain in Pittsburgh similar to that of any ten-year-old having to move to
a new location”). This finding is also consistent with the psychologist’s report, which,
while acknowledging the children’s poise and intelligence, also determined that they
are not of an age and maturity that a Court should consider their views.
Accordingly, the Court finds that the age and maturity defense does not
apply. However, the Court’s decision in this instance should not dissuade a
Ukrainian custody court from strongly considering the children’s views. Indeed, the
Court encourages their views to be considered within that appropriate forum.
(Doc. 31, pp. 14-15).
The Court was not ambivalent in making its determination relating to the children’s
objections. Rather, after interviewing the children, and after considering the opinion of an
independent mutually agreed upon psychologist after he interviewed them, the Court found
that under the Convention’s standard the children were not of the age and maturity such
that their views could be considered.

Accordingly, Respondent is not entitled to

reconsideration on this ground.
V.
Respondent next argues that reconsideration is warranted due to credibility issues
involving Petitioner and his witnesses, which Respondent says are not properly decided at
the summary judgment phase. Respondent argument lacks merit.
As the Court stated,

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Although both parties style their briefs as summary judgment motions,
the Court follows the legal standards set forth under the Convention and
ICARA and grants appropriate relief consistent with the treaty and relevant
statutory provisions. See Patricia Hoff, The Hague Convention on the Civil
Aspects of International Child Abduction: A Curriculum for American Judges
and Lawyers, American Bar Association Publication, October 1997, at 51
(“No specific form of civil action is required to commence a Hague return
proceeding . . . [w]rits of habeas corpus may best accomplish this goal, but
other forms of action may achieve similar results”).
(Doc. 31, p. 8 n. 4).
The Court followed the legal framework set forth under the Convention in making its
determination. Reconsideration is not warranted on this ground.
VI.
Lastly, Respondent asserts that even if the Court finds against reconsideration, it
should stay the execution of its return order pending the decision from the Highest
Specialized Court of the Ukraine in order to allow a final decision in the Ukranian courts
before making a final determination in this Court.
Relating to the treatment of decisions by the Ukrainian courts, the Court stated:
In the interest of comity, the Court has given considerable weight to the
Ukraine court decisions in deciding whether the children were wrongfully
removed and should therefore be returned to Petitioner; the Highest
Specialized Court’s decision is no different. On the other hand, the Court
has an obligation under the Convention to make an expeditious decision.
With these conflicting considerations in mind, effectiveness of this decision
is STAYED for 30 days to allow the parties the opportunity to further
illuminate the status of the legal proceedings in the Ukraine, including the
time it will take the courts in the Ukraine to resolve the pending
proceedings.
(Doc. 31, p. 3).
The Court has given great consideration to the Ukraine court decisions. However,
since the return order was filed, on May 17, 2011, a decision has not been reached by the

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Highest Specialized Court of the Ukraine, nor have further updates been provided by the
parties as to any change in the status of the case. In light of the indefiniteness as to when
a final decision will be reached in the Ukrainian courts, and the Court’s obligation under the
Convention to make an expeditious decision, a further stay is not warranted.
VII.
Accordingly, Respondent’s motion for reconsideration is DENIED. Further, the stay
on the return order is LIFTED and the children are ordered returned to the Ukraine,
consistent with the undertakings set forth in the Court’s May 17, 2011, memorandum and
order granting the petition. (Doc. 31).
SO ORDERED.

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: June 22, 2011

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, June 22, 2011, by electronic and/or ordinary mail.

s/Julie Owens
Case Manager, [phone]

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