Gwiazdowski v. Gwiadowska

Filing 19

MEMORANDUM & ORDER: For the reasons stated in the attached Memorandum & Opinion, respondent Anetta Gwiazdowska's motion for abstention is denied. A hearing on petitioner Cezary Gwiazdowski's Hague Convention petition is hereby scheduled for Thursday, March 26, 2015 at 11:00 a.m. Ordered by Judge Frederic Block on 3/6/2015. (Phillips, Nicholas)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CEZARY GWIAZDOWSKI,
Petitioner,
-againstANETTA GWIAZDOWSKA,

MEMORANDUM AND ORDER
14-CV-1482 (FB) (RER)

Respondent.
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Appearances:
For the Petitioner:
ANDRZEJ GASAK
Law Office of Andrzej Gasak
40 Brookdale Rd
Bloomfield, NJ 07003

For the Respondent:
KAMELIA KATRINA POPPE
Law Firm of Shaw & Associates
450 Seventh Avenue, Suite 2307
New York, NY 10123

BLOCK, Senior District Judge:
On February 11, 2014, petitioner Cezary Gwiazdowski (“Cezary”) brought this
action against Anetta Gwiazdowska (“Anetta”) seeking the return of their two children
to Poland pursuant to the Hague Convention on the Civil Aspects of International Child
Abduction (the “Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343
U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986), as implemented in the
United States by the International Child Abduction Remedies Act (“ICARA”), 22
U.S.C. § 9001–11. On August 16, 2014, Anetta moved to stay the proceedings under

the Colorado River1 doctrine because Cezary and Anetta were engaged in ongoing
custody proceedings in Queens County Family Court (“Family Court”).
On February 19, 2015, the Court held oral argument on Anetta’s motion. During
the hearing, the parties informed the Court that on December 17, 2014, the Family
Court entered a final order awarding legal and physical custody of the children to
Anetta (“Family Court Order”).2 Since Colorado River abstention only applies to
pending proceedings, not concluded ones, the Court will construe Anetta’s motion as
a motion to dismiss based on the preclusive effect of the Family Court Order. For the
reasons that follow, her motion is denied
I.
Under ICARA, United States courts must give full faith and credit “to the
judgment of any other . . . court ordering or denying the return of a child, pursuant to
the Convention, in an action brought under this chapter.” 22 U.S.C. § 9003(g); see
also Holder v. Holder, 305 F.3d 854, 864 (9th Cir. 2002) (“[F]ederal courts
adjudicating Hague Convention petitions must accord full faith and credit only to the
judgments of those state or federal courts that actually adjudicated a Hague
Convention claim in accordance with the dictates of the Convention and ICARA.”).

1

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800
(1976).
2

A copy of the order is attached hereto as Exhibit A.
2

Here, the Family Court Order does not have res judicata effect in this lawsuit
because there was no Hague Convention claim before the court.3 In their custody
petitions, neither Anetta nor Cezary requested that the Family Court adjudicate their
rights under the Hague Convention; rather, the parties sought only a custody
determination under New York law. See Compl., Ex. A (Anetta’s Custody Petition),
at 3 (“[Anetta] requests an order awarding custody of the child to the Petitioner . . .”);
Decl. of Anetta Gwiazdowski, Ex. B (Cezary’s Custody Petition), at 3 (“[Cezary]
requests an order awarding custody of the child named herein . . .”); Exhibit A at 1
(“The court has before it a custody petition filed by the Mother, Anetta Gwiazdowska
. . .”).
Since no Hague Convention claim was before the Family Court, the Family
Court Order cannot constitute an adjudication under the Hague Convention.
Accordingly, the Family Court Order does not preclude Cezary from bringing this
Hague Convention petition.4

3

At oral argument, Anetta contended that she did raise a Hague Convention
claim before the Family Court. However, she has submitted no evidence to
substantiate this assertion, though the Court granted her additional time to do so.
Accordingly, the Court bases its review solely upon the Family Court filings
provided by the parties.
4

It is unclear what effect the Family Court’s custody determination would
have if this Court orders the return of the children to Poland. Indeed, it is unclear
whether the Family Court had authority to enter a custody order, since it was
notified by the Department of State that it must refrain from making a custody
3

II.
For the foregoing reasons, Anetta’s motion to dismiss is denied. The Court
hereby schedules a hearing on Cezary’s petition on March 26, 2015, at 11:00 a.m.
SO ORDERED.
/s/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 5, 2015

determination pending resolution of the Hague Convention claim. See Letter re:
Motion Hearing, Ex. A (June 20, 2014 Letter to Family Court), Docket Entry No.
18-1 (Feb. 27, 2015); see also Hague Convention, Article 16 (“After receiving
notice of a wrongful removal or retention . . . , the judicial or administrative
authorities of the Contracting State to which the child has been removed or in
which it has been retained shall not decide on the merits of rights of custody . . .”).
In the interests of preserving the status quo, the Court will defer decision on
whether the Family Court Order should be vacated until after the Court has
adjudicated Cezary’s Hague Convention petition. Should the Court order the
return of the children to Poland, the Court will request supplementary briefing on
the question of whether the Court should vacate the Family Court Order.
4

Exhibit A
Matter of Anetta Gwiazdowska v. Cezary
Gwiazdowski, Docket No. V-25344-5-13
(N.Y. Fam. Ct. Queens Cty. Dec. 17, 2014)