CILLIKOVA v. CILLIK

Filing 25

OPINION. Signed by Judge Madeline C. Arleo on 8/5/2015. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________

:
:
:
Petitioner,
:
:
v.
:
:
PAUL CILLIK,
:
:
Respondent.
:
___________________________________ :
TIMEA CILLIKOVA,

Civil Action No. 15-2823

OPINION

ARLEO, UNITED STATES DISTRICT JUDGE
I.

INTRODUCTION
This matter is before the Court on Petitioner’s Verified Petition for Return of P.C. and

Pa.C. (the “Children”) to the Slovak Republic pursuant to the Convention on the Civil Aspects of
International Child Abduction, done at the Hague on October 25, 1980 (the “Convention”), and
the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601 et seq. (the
“Petition”) and Respondent’s motion to dismiss. Following their parents’ lawful divorce in
Slovakia, the Children lived with their father there, attended school there, and visited with their
mother on weekends and holidays. Without any notice to or consent of their mother, their father
removed them from Slovakia on October 14, 2015, and brought them to New Jersey, where they
have lived ever since. By this petition, their mother, Petitioner Timea Cillikova seeks their
return to Slovakia, which Respondent, their father, opposes.
The Court held an evidentiary hearing on August 4, 2015. This Opinion and Order
constitutes the Court’s findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

For the reasons set forth herein, the Petition is GRANTED and the motion to dismiss is
DENIED.
II.

FACTUAL FINDINGS
Petitioner Timea Cillikova is the Children’s mother and Respondent Paul Cillik is their

father. Both Petitioner and Respondent hold dual citizenship in the United States and Slovakia.
Petitioner and Respondent were married in New York in 1990 and again in the Slovak Republic
in 2001. Before 2004, the parties lived in the United States. P.C. was born here in 2003. In
2004, when Petitioner was pregnant with Pa.C., Petitioner and Respondent traveled to the Slovak
Republic where Pa.C. and the family remained. Petitioner and Respondent bought a home
(which they rented out for income), rented a home in Rimavska Sobota, Slovakia, and
Respondent obtained employment. Having been raised in Slovakia, both Petitioner and
Respondent had extended family and friends there.
The parties’ relationship began to deteriorate in 2006, but the parties dispute what caused
this deterioration. Petitioner claims Respondent’s involvement in an online pornographic chat
website business created the tension, especially once Respondent’s conduct became common
knowledge in their conservative community. Petitioner further asserts that during this period
Respondent became abusive, in one instance threating to kill her with a knife. Petitioner claims
she began to live in fear and anxiety, which led to her experiencing mental health issues.
Respondent denies that he was involved in running this website (rather the people to
whom they rented their house were involved) but instead worked as an electrician and contractor.
He further claims that Petitioner’s mental health problems were not the result of, but instead the
cause of, their marital difficulties.

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On three occasions between 2009 and 2013, Plaintiff received medical treatment, and/or
was hospitalized for her mental health problems.
In 2009, Petitioner first filed for divorce in Slovakia. This application was not
adjudicated due to Petitioner’s hospitalization during this period.
In 2011, Respondent moved with the Children to Bratislava, Slovakia, because of a job
opportunity. While Petitioner testified that she was not happy with the move, she did not object
because she could still visit the Children on a regular basis.
Also in 2011, Petitioner again filed for divorce and originally sought joint custody. In
October 2013, however, Petitioner offered a settlement proposal in which the children would be
“placed in the custody of [Respondent]” and she would be granted visitation rights. P-20.
Petitioner claims she offered this compromise because the judge in that proceeding commented
that the Children would have better opportunities in Bratislava, she had limited financial
resources, and was being treated for mental health issues.
In November 2013, a Divorce Judgment in Slovakia was entered. See P-2. In this
document, Respondent was awarded “personal custody” of the children and Petitioner was
granted visitation rights on certain weekends, school breaks, and holidays. Id. The Divorce
Judgment also provided that, “[b]oth parents are entitled to represent the minor children and
manage their property.”
The Children were settled in their lives in Slovakia. They enrolled in school, participated
in extracurricular activities, and spent time with relatives and friends. They lived with their
father, but also visited with their mother, who was engaged in their lives. While Respondent
disputes the frequency of Petitioner’s visitations, it is undisputed that Petitioner did to some
extent exercise her visitation rights, interacted with the Children’s teachers, visited the Children

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at school, and had communications with the school staff.

All of Petitioner’s visits were

unsupervised.
Respondent removed the Children from the Slovak Republic to the United States on or
about October 14, 2014. Respondent testified that he had plans to travel to the United States
alone, and decided to take the children with him just days before, when the children, then ages 9
and 11, told him: “Father we are ready to go to the U.S.” Respondent admits that he did not
seek permission from Petitioner or otherwise advise her that he was leaving with the Children.
Nor did he tell anyone at the Children’s school or any other family members. After arriving, he
rented an apartment and decided to stay permanently in New Jersey with the Children, his new
wife, and their daughter. He enrolled the Children in the local public school. See P-13.
Petitioner learned about the Children’s removal after she unable to reach them on their
cellphones and their school advised her that they were not there. Several days after he removed
the Children, Respondent sent Petitioner an email advising her of the move. Shortly after the
Children’s removal, Petitioner filed a Request for Return. See P-4.
In 2014, before Respondent removed the Children, he moved for an increase in child
support payments and changes to Petitioner’s visitation rights. That case was stayed pending the
outcome of this case, but the Slovak court did issue a Resolution in which it concluded
Respondent violated the Slovak Family Code by removing the Children without Petitioner’s
consent. P-19.
III.

BACKGROUND OF THE CONVENTION
The two main purposes of the Hague Convention are “to ensure the prompt return of

children to the state of their habitual residence when they have been wrongfully removed,”
Convention, pmbl., and “to ensure that rights of custody and of access under the law of one

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Contracting State are effectively respected in the other Contracting States,” id., art. 1. The
Convention's procedures are not designed to settle international custody disputes, but rather to
restore the status quo prior to any wrongful removal or retention, and to deter parents from
engaging in international forum shopping in custody cases. Baxter v. Baxter, 423 F.3d 363, 367
(3d Cir. 2005). Any person seeking the return of a child in the United States may commence a
civil action under the Convention by filing a petition in a court of the jurisdiction in which the
child is located. 42 U.S.C. § 11603(b). To obtain an order for the child's return, the petitioner
bears the burden of proving by a preponderance of the evidence that the removal or retention was
wrongful under Article 3 of the Convention. 42 U.S.C. § 11603(e)(1)(A). Under Article 3, the
removal or retention of a child is “wrongful” where:
(a) it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under the
law of the State in which the child was habitually resident
immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.
Convention, art. 3.
IV.

STANDARD OF REVIEW FOR PETITIONER’S CASE
When adjudicating a petition under Article 3 of the Convention, the Court must consider

four issues:
(1) when the removal or retention at issue occurred;
(2) the country in which the child was habitually resident prior to
the removal or retention;
(3) whether the removal or retention breached the custody rights of
the petitioner; and

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(4) whether the petitioner was exercising those custody rights at
the time of the removal or retention.
De La Vera v. Holguin, No. 14-4372, 2014 WL 4979854, at *6 (D.N.J. Oct. 3, 2014) (citing
Baxter, 423 F.3d at 368). Petitioner must establish a prima facie case of wrongful removal or
retention by a preponderance of the evidence. Id. (citing 42 U.S.C. § 11603(e)(1)(A)).
Here, on October 14, 2014, Respondent removed the Children from the Slovak Republic.
At that time, they were habitual residents of Slovakia. They lived there, attended school there,
and engaged in extracurricular activities. Additionally, both children are under the age of 16.
Respondent does not dispute these facts.
Respondent disputes that the Children’s removal breached any of Petitioner’s custody
rights or that Petitioner was exercising those rights at the time of removal or retention. He also
argues that Petitioner lacked any “right of custody” at all and, therefore, that the Petition should
be denied and the Court should dismiss this action for lack of jurisdiction. This Court disagrees.
“Right of custody” is a term of art defined in Article 5 of the Convention: “‘[R]ights of
custody’ shall include rights relating to the care of the person of the child and, in particular, the
right to determine the child's place of residence.” Such rights “may arise in particular by
operation of law or by reason of a judicial or administrative decision, or by reason of legal effect
under the law of [the State in which the child was habitually residing].” Convention, art. 3.
Therefore, the Court must consult Slovak law, judicial determinations, and agreements having
legal effect in the Slovak Republic to identify the scope of Petitioner’s rights and then determine,
under the Convention’s text and structure, whether any of those rights constitute a “right of
custody.” Abbott v. Abbott, 560 U.S. 1, 10 (2010).
In Abbott, the United States Supreme Court held that “rights of custody” include more
than the right of physical custody. Id. In that case, a mother removed her son from Chile to the
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United States and the child’s father moved for the child’s return. Id. at 6. The Chilean courts
had granted mother daily care and control of the child and awarded the father “direct and
regular” visitation rights. Id. A Chilean court had also provided the father a ne exeat right,
which is a right requiring the father’s consent prior to the child’s removal from the country. Id.
The Supreme Court concluded that because the petitioner-father had been granted the right to
determine the child’s place of residence, he had a “right of custody” under the Convention. Id. at
11. Ne exeat rights established by legal codes also constitute “rights of custody.” See Font
Paulux v. Vittini Cordero, No. 12-986, 2012 WL 2524772, at *5 (M.D. Pa. June 29, 2012); see
also Garcia v. Varona, 806 F. Supp. 2d 1299, 1310 (N.D. Ga. 2011) (“A parent who has
authority under the law of the state of habitual residence to make decisions regarding the
personal care, protection, maintenance, and finances of the child, possesses rights of custody that
fall within the ambit of decisions relating to ‘the care of the person of the child’ within the
meaning of Article 5 of the Convention.”) (citing Hanley v. Roy, 485 F.3d 641, 657 (11th Cir.
2007)); De La Vera, 2014 WL 4979854, at *9.
The Slovak Family Code § 28 states that “parental rights and obligations” include: (a)
continual and consistent personal care for upbringing, health, maintenance, and all-around
development of the child; (b) representation of the child; and (c) administration of the child’s
property.” P-9. These rights are to be exercised by both parents. Id. Section 35 further
provides:
If parents fail to agree on substantive matter in the exercise of their
parental right and obligations, in particular on moving the minor
child abroad . . . the court shall decide on the motion of some
parent.
Id. § 35; see also P-10 at § 2 (stating that parental rights and obligations “clearly includes the
right to determine where the child shall live”); P-21.
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Based upon the foregoing, the Court concludes that, absent any modifications by a
Slovak court or agreement of the parties, Slovak law provided Petitioner with “rights of
custody,” including a ne exeat right, or right to determine the Children’s country of residence.
This Court is also satisfied that the parties Divorce Judgment reaffirmed the rights
already provided by Slovak law. Here, the Divorce Judgment awarded sole physical custody to
Respondent, but also provided that “[b]oth Parents have right to represent minor children and
administer their property.” P-2. “Representation of the child” and “administration of the child’s
property” are two of the “parental rights and obligations” set forth in Section 28 of the Slovak
Family Code. See P-9. Thus, under a plain reading of the Divorce Judgment, Petitioner retained
some of her “parental rights and obligations.”
Further confirming that the Divorce Judgment did not divest her of her “parental rights
and obligations,” is a March 11, 2015, Resolution (the “Resolution”) from the Bratislava Court.
See P-19. This Resolution was issued in response to Respondent’s 2014 application to modify
the Divorce Judgment to increase child support and following the Children’s removal to the
United States. In this document the Court states:
Even though the minors are in the custody of the father their
mother is not restricted from not limited in the performance of her
parental rights and obligations. Their father failed to inform the
mother about leaving and taking the minors to the USA and he
failed to ask her previous consent. Thus, the father has strongly
limited the mother in the performance of her rights and
obligations towards the minors when he disabled her from
meeting the minors in a regular way, the way it should be if the
minors lived in Slovakia.
The change of relations of the minors was then caused
intentionally by father’s acting contrary to provision § 35 of
Family Act although it is not within the competence of this court to
evaluate the father moving the minors as illegal.
Id. (emphasis added).
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Finally, at trial, Respondent himself stated that Petitioner had “parental rights,” which
included providing support, access to the Children’s schools, and managing their property.1
The Court therefore concludes that the Divorce Judgment did not completely divest
Petitioner of her “parental rights and obligations,” including her ne exeat right. Instead, the
Divorce Judgment expressly reaffirmed that Petitioner retained the right to represent the children
and administer their property. Thus, Petitioner possessed rights of custody as of October 2014.
See Abbott, 560 U.S. at 21; Garcia, 806 F. Supp.2d at 1310.
The Court next turns to the third consideration in Petitioner’s prima facie case: whether
the removal or retention breached Petitioner’s custody rights. Clearly, removing the Children
without obtaining Petitioner’s consent violated, at a minimum, Petitioner’s ne exeat right. See
Abbott, 560 U.S. at 21.
Finally, the Court addresses whether Petitioner was exercising her rights when the
Children were removed. “Very little is required of the applicant in support of the allegation that
custody rights have actually been or would have been exercised. The applicant need only
provide some preliminary evidence that he or she actually exercised custody of the child, for
instance, took physical care of the child.” In re Adan, 437 F.3d 381, 391 (3d Cir. 2006). Here,
while Respondent disputes the frequency of Petitioner’s visitations, it is undisputed that
Petitioner did exercise her visitation rights to some extent, interacted with the Children’s
teachers, visited the Children at school, and communicated with school staff. Furthermore, as
the Supreme Court noted in Abbott, ne exeat rights are inchoate and cannot be exercised until a
child is removed from the habitual state. Abbott, 560 U.S. at 13. Thus, Respondent’s removal of

1

 The only evidence that Respondent offered in support of his narrow construction of the

Divorce Judgment is a self-serving affidavit from his own attorney in the Slovak Republic. P-11.
However, the attorney never stated that the Divorce Judgment stripped Respondent of all of her
rights and he even admits that “both parents have parental rights and obligations.” Id.

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the Children without Petitioner’s consent was “an instance where the right would have been
exercised but for the removal or retention.” Id. (internal quotation omitted). Therefore, the
Court concludes that Petitioner has satisfied this element.
Based upon the foregoing, the Court finds that Petitioner has met her prima facie burden2
and now turns to Respondent’s affirmative defenses.
V.

AFFIRMATIVE DEFENSES
a. Physical or Psychological Harm or Intolerable Situation
Article 13(b) provides:
Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State is not
bound to order the return of the child if the person, institution or
other body which opposes its return establishes that –  there is a
grave risk that his or her return would expose the child to physical
or psychological harm or otherwise place the child in an intolerable
situation.
Grave risk of harm must be proven by clear and convincing evidence and this defense is

“narrowly drawn.” In re Adan, 437 F.3d 381, 394 (3d Cir. 2006). The Third Circuit has
explained:
The exception has been held to apply in at least two sets of cases:
when return of the child puts the child in imminent danger ... e.g.,
returning the child to a zone of war, famine, or disease ... [and in]
cases of serious abuse or neglect, or extraordinary emotional
dependence, when the court in the country of habitual residence,
for whatever reason, may be incapable or unwilling to give the
child adequate protection.
....
At one end of the spectrum are those situations where repatriation
might cause inconvenience or hardship, eliminate certain
educational or economic opportunities, or not comport with the
child's preferences; at the other end of the spectrum are those

2

For the same reasons, respondent’s motion to dismiss for lack of jurisdiction is denied.
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situations in which the child faces a real risk of being hurt,
physically or psychologically, as a result of repatriation. The
former do not constitute a grave risk of harm under Article 13(b);
the latter do.
Baxter, 423 F.3d at 373 (quotations and citations omitted).3 When considering whether an
Article 13(b) exception applies, the Court “must take into account any ameliorative measures (by
the parents and by the authorities of the state having jurisdiction over the question of custody)
that can reduce whatever risk might otherwise be associated with a child’s repatriation.” Adan,
437 F.3d at 395-96. Even if a court concludes that authorities in the country of habitual
residence are capable of safeguarding the child, however, “it must still carefully tailor its order to
counter whatever risk of harm exists—including returning the child in the custody of the parent
who removed the child— thus reducing or eliminating the risk of harm that might otherwise be
associated with granting [the] petition.” Id. (internal quotation omitted).
Here, Respondent argues this defense applies based upon: (1) Petitioner’s mental health
issues and (2) the Slovak Republic’s proximity to Ukraine and potential threats of terrorism.

3

The Department of State has provided additional guidance as to when this defense

applies:
A review of deliberations on the Convention reveals that
“intolerable situation” was not intended to encompass return to a
home where money is in short supply, or where educational or
other opportunities are more limited than in the requested State. An
example of an “intolerable situation” is one in which a custodial
parent sexually abuses a child. If the other parent removes or
retains the child to safeguard it against further victimization, and
the abusive parent them petitions for the child's return under the
Convention, the court may deny the petition. Such action would
protect the child from being returned to an “intolerable situation”
and subjected to a grave risk of psychological harm.
51 Fed. Reg. at 10,510.
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As to Petitioner’s mental health issues, the Court concludes Respondent has not
demonstrated by clear and convincing evidence that Petitioner’s mental condition creates a
“grave risk of harm” to her children. First, there was absolutely no evidence offered at trial
regarding Petitioner’s present mental health or how, if the children are returned to Slovakia, her
continued visits and involvement in their lives would cause them “grave harm.” It bears noting
that for five years prior to the Children’s removal, Petitioner was allowed unsupervised visits
with her Children. The Slovak courts were aware of Petitioner’s mental health issues – this was
at issue in the divorce proceeding – and nonetheless ordered regular, unrestricted visitation. In
addition, Petitioner testified that her mental health has improved since the divorce and has
submitted a declaration from her treating psychiatrist, Maria Prochazkova, in which Dr.
Prochazkova states that Petitioner’s condition has been “stabilized” since 2013. See P-22.
Indeed, Respondent testified that if Petitioner relocates to New Jersey, he would permit regular
unrestricted visitation with the Children. How then can he claim that Petitioner’s mental health
would place the Children in danger if she resumed visits in the Slovak Republic?
Thus, the Court concludes Respondent has failed to demonstrate by clear and convincing
evidence that Petitioner’s mental health issues would present a grave risk to the Children if they
are returned to Slovakia. See Baxter, 423 at 374 n.9 (common challenges to the fitness of one
parent as a guardian, such as allegations of alcoholism, are better left to the adjudication of the
home-state’s family court system); Bowen v. Bowen, No. 13-731, 2014 WL 2154905, at *11
(W.D. Pa. May 22, 2014) (denying grave risk of harm challenge even when Child Protective
Services had investigated allegations of abuse at home and the child had experienced some
degree of racism in school); Clarke v. Clarke, No. 08-690, 2008 WL 2217608, at *9 (E.D. Pa.
May 27, 2008) (denying grave risk of harm challenge even though authorities in Australia had

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investigated allegations of sexual assault by the father, in part because the Australian authorities
could address any future allegations of such conduct).
Respondent claims that the children would be placed in an “intolerable situation” or
exposed to a “grave risk of harm” if returned to Slovakia likewise fails. At trial, the only
evidence to support this claim was Respondent’s own vague testimony about emails he allegedly
received from the Department of State “warning of acts of terror” in the Slovak Republic. None
of these “warnings” was admitted into evidence or placed in context. No evidence of “imminent
danger” was placed before the Court. Respondent himself conceded that the Slovak Republic is
not currently experiencing any famine or war. Petitioner countered with the current State
Department travel advisory that “Slovakia remains largely free from terrorist activity.”

Thus,

the Court concludes that the return of the Children to the Slovak Republic would not constitute a
grave risk of harm or intolerable situation.
b. Consent or Acquiescence
Article 13(a) of the Convention provides:
The judicial or administrative authority of the requested State is
not bound to order the return of the child if the person, institution
or other body which opposes its return establishes that . . . the
person, institution or other body having care of the person of the
child . . . had consented to or subsequently acquiesced in the
removal or retention.
Consent and acquiescence are separate defenses, both should be interpreted narrowly, and
both must be proved by a preponderance of the evidence. Baxter, 423 F.3d at 371. “The consent
defense involves the petitioner's conduct prior to the contested removal or retention, while
acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or
retention.” Id.

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1. Acquiescence
“The defense of acquiescence has been held to require an act or statement with the
requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation
of rights; or a consistent attitude of acquiescence over a significant period of time.” Id. (internal
quotation omitted). “[T]he acquiescence inquiry turns on the subjective intent of the parent who
is claimed to have acquiesced.” Id.
It is clear that Petitioner has not acquiesced. The evidence demonstrates that Petitioner,
weeks after learning of the Children’s removal, began the process of seeking their return under
the Convention. See P-4; see also Clarke, 2008 WL 2217608, at *7 (“Further, Mr. Clarke filed a
custody action immediately upon learning that Mrs. Clarke planned to remain in the United
States with the children. Mr. Clarke never made any statements that the retention of the children
was permissible and at no time acted in a manner that would imply he acquiesced to the
wrongful retention of the children.”). Respondent conceded at trial that when he finally spoke to
Petitioner after he had removed the Children, she continued to dispute the removal.

The fact

that Petitioner may have sought a stay of the proceedings in the Slovak Republic pending
resolution of the instant matter, this does not demonstrate acquiesce in any way, shape, or form.
Respondent has not offered a statement in a judicial proceeding, a written renunciation, or any
other act or statement with the requisite formality that suggests that Petitioner, since the Children
were removed, has acquiesced to their removal.
2. Consent
Consent need not be expressed with the same degree of formality
as acquiescence in order to prove the defense under article 13(a).
Often, the petitioner grants some measure of consent, such as
permission to travel, in an informal manner before the parties
become involved in a custody dispute. The consent and
acquiescence inquiries are similar, however, in their focus on the
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petitioner's subjective intent. In examining a consent defense, it is
important to consider what the petitioner actually contemplated
and agreed to in allowing the child to travel outside its home
country. The nature and scope of the petitioner's consent, and any
conditions or limitations, should be taken into account. The fact
that a petitioner initially allows children to travel, and knows their
location and how to contact them, does not necessarily constitute
consent to removal or retention under the Convention.
Baxter, 423 F.3d at 371.
Respondent conceded at trial that he never obtained Petitioner’s consent before removing
the children – he never even told her of his plans. Petitioner likewise testified that she did not
consent to the Children’s removal. The Slovakian Court likewise found that “the father failed to
inform the mother about leaving and taking the minors to the USA and he failed to ask her
previous consent.” P-19. This is not a close call. This defense fails.
VI.

CONCLUSION
For the reasons set forth herein, Petitioner’s petition is GRANTED and Respondent’s

motion to dismiss is DENIED.

Nothing in this Opinion or accompanying Order, however,

constitutes a modification of the Divorce Judgment. An appropriate Order shall issue.

/s Madeline Cox Arleo______________
Hon. Madeline Cox Arleo
United States District Judge  

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