Kosewski v. Michalowska
MEMORANDUM AND OPINION: For the reasons discussed in the attached Memorandum and Opinion, petitioner's request for relief under the Hague Convention is denied, the petition is dismissed, and each party shall bear its own costs. The court' s prohibition on respondent's removal of the child from this district during the pendency of this action is hereby lifted. The Clerk of the Court is respectfully requested to return the child's passport to respondent, enter judgment in favor of respondent, and close this case. Ordered by Judge Kiyo A. Matsumoto on 10/14/2015. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JANUSZ KRZYSZTOF KOSEWSKI,
MEMORANDUM AND ORDER
- against –
KATARZYNA ANNA MICHALOWSKA,
MATSUMOTO, United States District Judge:
On February 20, 2015, petitioner Janusz Krzysztof
Kosewski (“petitioner”) filed a petition under the Hague
Convention on the Civil Aspects of International Child Abduction
(the “Hague Convention” or the “Convention”) as implemented in
the United States by the International Child Abduction Remedies
Act (“ICARA”), 42 U.S.C. §§ 11601 et seq., seeking an order
directing respondent Katarzyna Anna Michalowska (“respondent”)
to return their minor daughter, M.K. (the “child”), 1 now age 7,
Petitioner contends that respondent wrongfully
removed M.K. from Poland and wrongfully retained her in the
United States in violation of petitioner’s custody rights under
(See generally ECF No. 6, Verified Amended Petition
for Return of Child (“Am. Pet.”).)
Respondent counters, inter
alia, that, even if her removal and/or retention of the child in
1 To protect the child’s identity, her initials will be used instead of her
name pursuant to Fed. R. Civ. P. 5.2. See Radu v. Toader, 805 F. Supp. 2d 1,
3 n.1 (E.D.N.Y. 2011), aff’d, 463 F. App’x 29 (2d Cir. 2012) (summary order).
the United States is deemed wrongful, this court should
nonetheless deny the petition because more than one year has
elapsed since the child’s removal from Poland and she is now
settled in the United States.
The court conducted a three-day hearing on August 3,
4, and 5, 2015, and the parties and their witnesses testified
with the assistance of a Polish interpreter.
The parties made
post-hearing submissions, which were completed on August 28,
For the reasons set forth below, the court finds that the
Article 12 now-settled defense is available to respondent and
denies petitioner’s application for relief under the Hague
Findings of Fact 2
Petitioner and Respondent’s Meeting, the Parties’
Relocation to Poland, and the Birth of the Child
In 2007, while in the United States, petitioner, a
citizen of Poland, began dating respondent, also a citizen of
Poland, after meeting in South Lake Tahoe, California.
65, Joint Stipulation of Facts dated 8/2/15 (“Stip.”) ¶ 8; Tr.
Petitioner was participating in a program through
Unless otherwise indicated, the following facts have been established by a
preponderance of the evidence and are based upon evidence admitted at trial,
the parties’ credible testimony contained in the hearing transcript (“Tr.”),
and the joint stipulation of facts submitted by the parties.
his university known as Work and Travel, whereby international
students could travel to the United States to work for a season
and improve their English-speaking capabilities.
Respondent had completed her studies in Poland and was visiting
her grandparents in New York with a view towards relocating to
the United States.
While in the United States,
respondent planned to obtain a green card and met with an
attorney to begin the process.
(Tr. 359; see Tr. 35.)
Respondent discussed her plans with petitioner as they began to
discuss plans for a future together.
(Tr. 35; see Tr. 361.)
After respondent’s visit to South Lake Tahoe, she
returned to New York, where her grandfather lived.
see Tr. 35.)
Petitioner traveled to New York to join
respondent, and they stayed together in Stamford, Connecticut,
with respondent’s green card sponsor.
and respondent stayed in the United States for about one month,
during which time they stayed in Stamford during the week and
visited New York on the weekends to sightsee.
(Tr. 261, 360.)
While sightseeing in New York City on weekends, they would stay
at respondent’s grandparents’ house in Queens.
At the end of 2007, petitioner asked respondent to
return to Poland with him so that he could complete his law
(Tr. 32, 35; see Stip. ¶ 9.)
At the time
of petitioner’s return to Poland, he told respondent that he had
approximately half a year remaining in his studies and had to
defend his master’s thesis and pass a pre-apprenticeship
(Tr. 36; 361.)
Respondent agreed, believing that
petitioner only had one exam remaining, 3 and returned to Poland
with petitioner in 2008.
(Tr. 32, 35, 361; Stip. ¶ 10.)
According to respondent, she and petitioner discussed returning
to the United States after he completed his remaining
Petitioner stated that, although he
and respondent discussed traveling to the United States, they
did not discuss or make plans to return to the United States
with green cards.
(Tr. 35, 37.)
Petitioner also testified
that, after M.K.’s birth, he and respondent never discussed
raising her anywhere other than Poland.
Upon his return to Poland, petitioner lived with his
parents in their home in Poznan.
Respondent rented a
room in an apartment belonging to one of petitioner’s friends,
also in Poznan.
(Stip. ¶ 10.)
In February 2008, respondent
learned that she was pregnant and informed petitioner.
Respondent expected that they would get married as a
result of her pregnancy, but the parties never married.
3 Respondent testified that petitioner in fact had three exams remaining and
had not yet written his thesis at the time they returned to Poland, whereas
he had told her that he only had one exam left to complete. (Tr. 361-62.)
363; Stip. ¶ 4.)
According to respondent, petitioner told her
that a pregnancy was not a reason to get married, and that he
could not afford to get married. 4
petitioner testified that he felt “very good” about becoming a
father (Tr. 38), respondent testified that her relationship with
petitioner began to deteriorate from the time his family learned
about her pregnancy.
Petitioner and respondent found an apartment to rent
in Poznan and moved in together in May 2008.
Stip. ¶ 11.)
(Tr. 38, 364;
Respondent spent the summer of 2008 at her
family’s home but returned to Poznan to give birth.
M.K. was born in September 2008 in Poznan.
(Tr. 40; Stip.
Respondent and her mother testified that the child was
born prematurely, and respondent underwent surgery to remove her
(Tr. 303, 366.) After the child’s birth, petitioner
returned to work while respondent recovered and cared for the
child full time.
(See Tr. 40, 366-67.)
Respondent’s mother traveled to Poznan to help
respondent care for the child during her recovery because
respondent was in a “very weakened state.”
(Tr. 303, 366-67.)
4 During his testimony, petitioner stated that he never refused to marry
respondent but could not marry her because he could not afford a wedding
reception for 100 people. (Tr. 96.)
5 Petitioner testified that M.K. was not born prematurely and that there were
no complications from her birth. (Tr. 97-98)
Days after respondent’s mother’s arrival, she left petitioner
and respondent’s home at the behest of petitioner. 6
Respondent testified that she had wanted to leave as well
but could not make the journey to her parents’ home due to her
own physical health and M.K. being only weeks old.
Respondent’s Relocation from Poznan
Petitioner, respondent, and the child lived together
in Poznan until approximately January 2011. 7
(Stip. ¶ 11.)
parties have materially conflicting recollections of their
interactions and petitioner’s interactions with the child during
Petitioner repeatedly characterized his relationship
with respondent while in Poland as “good” or “very good.”
Although petitioner admitted to arguing with
respondent, at times loudly, he characterized those arguments as
“constructive discussion” and “differences of opinion.”
Petitioner testified that he never hit M.K. or raised his
voice in anger in her presence.
6 Petitioner testified that he told respondent’s mother to go home and relax
due to his concerns about “experimental medication” she was taking for
multiple sclerosis at the time. (Tr. 99-101.) Respondent’s mother, as well
as respondent, testified that while respondent was recovering from
complications of childbirth, petitioner ordered respondent’s mother to leave
the house and threatened to call the police after she challenged him for
constantly arguing with respondent. (Tr. 307-308, see Tr. 367.)
Respondent’s mother’s husband traveled from their home in Szczytno to Poznan
to pick her up at midnight. (Id.)
7 Petitioner’s parents purchased an apartment for petitioner, respondent, and
the child to live in, where petitioner presently resides. (Tr. 132, 199.)
was living in Poland, petitioner’s family saw petitioner,
respondent, and M.K. often.
(Tr. 41, 111-12.)
Respondent and other witnesses, on the other hand,
testified that petitioner was verbally and physically abusive
with respondent, sometimes in the child’s presence.
testified that petitioner would throw objects, yell, and call
respondent names, including “idiot,” “stupid,” “worthless,” and
“pathological,” while the child was present.
Respondent witnessed petitioner yelling at the child when they
lived together in Poznan.
Respondent also reported
that petitioner would sometimes grab and shake respondent during
(Tr. 374, 385.)
Respondent further testified that
petitioner threatened her that, if she were to move out, he
would leverage his own knowledge of the law and the influence of
his mother, a judge in Poland, to take custody of the child from
Aleksandra Sloka, respondent’s cousin who took care of
M.K. full time during the summer of 2010, observed petitioner
and respondent arguing frequently.
She observed petitioner
throwing objects near, toward, or in the presence of the child
and insulting respondent and her family.
Sloka also testified that she witnessed petitioner spank the
(Tr. 287, 291.)
testified that the child told her that petitioner struck her on
(Tr. 314, 320.)
Both respondent and Ms.
Sloka observed changes in the child’s behavior over time -including grinding her teeth, balling her hands into fists,
nailbiting, and clinging to her mother – that they attributed to
the discord in the home. (Tr. 275, 288.)
At a later point,
after respondent and the child had moved away from Poznan, the
child told respondent that petitioner had spanked her during her
visit with petitioner.
In the fall of 2010, respondent grew tired of the
discord and tension at home and decided to leave the Poznan
apartment with the child.
(Tr. 44, 378, 382.)
appeared not to believe respondent initially when she told him
she would be moving out.
(Tr. 44-45; 382.)
testified that, after respondent and the child moved out, he
believed that they would eventually return to Poznan to live
together with him as a family.
At no point did
petitioner or respondent seek a formal agreement or court order
regarding their shared custody of M.K.
that he did not take steps to obtain a court order regarding
custody or child support because he always thought that he and
respondent would reconcile.
Respondent testified that
petitioner told her that such an order would tarnish his
reputation as an attorney and hamper his ability to earn money
and pay child support.
(Stip. ¶ 18; see Tr. 45, 48, 153, 386.)
Nevertheless, in January 2011, respondent left
petitioner, first to her parents’ home in Szczytno, and then to
an apartment in Olsztyn. 8
(Tr. 44; Stip. ¶ 13.)
continued to reside in Poznan, where he presently lives. 9
After respondent’s departure from Poznan, she and the
child would visit petitioner on some weekends.
see Stip. ¶ 19.)
(Tr. 45, 387-88;
When respondent and the child would return to
Poznan to visit petitioner, they would stay at petitioner’s
On occasion, M.K. would spend weekends in
Poznan with petitioner without respondent.
(See Tr. 388-89.)
Respondent testified that, during these stays, M.K. would call
respondent and ask to leave the visit with her father.
Petitioner would also visit respondent and the child in
Olsztyn on a monthly basis and stay in a guest room in
(Tr. 49-48; 387-88.)
reported communicating with respondent and the child by phone or
Skype almost every day while they lived in Olsztyn.
Petitioner continued to characterize his relationship with
respondent as “good” during this time.
8 Both Szczytno and Olstyn are at least a six hour drive away from Poznan.
(Stip. ¶ 14-15.)
9 Petitioner presently works in a law practice that he started with a close
friend, Marek Bartkowiak, in September 2013. (Tr. 202, 227.)
Respondent and the Child’s Departure from Poland in
Respondent met Marek Michalowski in Olsztyn during a
period of vacation in 2012, and they became romantically
(See Tr. 390.)
Mr. Michalowski had applied to take
part in the green card lottery in 2010 or 2011 (Tr. 335, 349),
and in early 2013, he was notified by the United States
consulate that he had been selected for an interview, the final
stage of the lottery process.
(Tr. 325-36, 349; see Tr. 391.)
In order for respondent and the child to also obtain green cards
through the lottery process, respondent and Mr. Michalowski
would have to marry, which they did on April 13, 2013.
336-37, 349; see also 391, 395.)
In order for respondent and Mr. Michalowski to travel
to the United States with the child, the child would need to
obtain a passport.
In March 2013, respondent sought
petitioner’s assistance in obtaining a passport for M.K, and
petitioner agreed to accompany respondent to the passport
(Stip. ¶ 25; Tr. 394; see Tr. 49, 51, 392-93; Stip.
The child received her passport in April 2013.
Petitioner maintains that respondent explained to him that
M.K. needed the passport for an upcoming vacation with
Under Polish law, both parents of a minor child must appear in person to
obtain a passport for that child. (See Stip. ¶ 24; Joint Ex. 1.)
respondent within Europe. 11
testified that, at the time he accompanied respondent and M.K.
to the passport office in March 2013, he was not aware that
respondent had plans to marry Mr. Michalowski, 12 obtain a green
card, or travel to the United States.
stated that he would not have consented to the child obtaining a
passport had he known of respondent’s plans to move to the
United States with the child and seek permanent residence.
Respondent testified that she informed petitioner that the
purpose of the passport was for M.K. to travel with respondent
and Mr. Michalowski to the United States if they succeeded in
the green card lottery.
(Tr. 392-94, 482-83.)
Several weeks after respondent and Mr. Michalowski’s
interviews at the U.S. consulate in May 2013, they received
temporary visas in their passports permitting their and M.K.’s
travel to the United States to obtain their actual green cards. 13
(Stip. ¶ 29; Tr. 337-38, 350, 395, see also Joint Exs. 7, 8.)
After receiving their visas, respondent and Mr. Michalowski made
plans to travel to the United States with M.K. in September
2013, after a vacation to Croatia.
(Tr. 338, 400-401.)
Petitioner’s mother also testified that both respondent and the child told
her that they would be going on vacation to Croatia. (Tr. 113-14.)
According to petitioner, respondent informed him by phone in April 2013
that she would be getting married to Mr. Michalowski. (Tr. 51.)
In order to complete the process and obtain green cards, they would need to
travel to the United States within 6 months of the interview. (Tr. 400.)
Respondent and Mr. Michalowska later decided to forego
the vacation to Croatia and instead fly directly to the United
States in August 2013.
They rescheduled their
travel due to the early start of the school year in New York
City, respondent’s grandfather’s request for help in selling his
Queens, New York house, and their anticipated expenses in
connection with their international move.
(Tr. 339, 400-401.)
They purchased one way tickets to the United States about one
week prior to their travel.
Mr. Michalowski did not
quit his job prior to their departure, and he and respondent
only packed clothing because their room in respondent’s
grandfather’s house was furnished.
In August 2013, prior to respondent, Mr. Michalowski,
and M.K.’s departure for the United States, petitioner and his
family took M.K. to the Polish seaside for vacation.
see Tr. 112-14, 340, 402-403.) 14
Respondent and Mr. Michalowski
came to pick up the child from petitioner at the seaside.
Respondent, Mr. Michalowski, and M.K. arrived in New
York on August 16, 2013.
(Stip. ¶ 32; see Tr. 427.)
Respondent and Mr. Michalowski testified that they learned towards the end
of petitioner’s vacation that petitioner had taken M.K. somewhere different,
and farther away, than he had initially told respondent. (Tr. 340-43, 403.)
They further testified that petitioner refused to meet them halfway and
demanded that they pick up the child from the seaside, approximately 400
kilometers away from where respondent and Mr. Michalowski were living. (tr.
arrival, they stayed with respondent’s grandfather in Queens
while respondent and Mr. Michalowski looked for work.
Respondent did not have a cell phone or access to a
landline telephone, so petitioner was unable to contact her.
(Tr. 53, 427-28.)
Petitioner testified that he assumed that
respondent had no cell phone reception because she was in
She was later able to send emails to
petitioner by using a friend’s computer and internet access.
On August 28, 2013, respondent emailed petitioner to
inform him that she and M.K. had landed in New York.
2; see Tr. 54.)
The email stated, in pertinent part:
I was only now able to connect to the internet and write to you.
First of all, I would like to inform you of a change in plans,
due to factors out of my control. This concerns my grandpa, but
his issue is personal, so I do not feel authorized to disclose
specifics. I want you to know that [M.] and I have landed in New
York. [M.] is doing well, she handled the flight well and is
enjoying everything so far.
For now, she is healthy and handling the hot weather. I am
trying to make sure she sees as much of NY as possible, even
though these temperatures are exhausting.
Right now I am unable to give you details of our return, because
it depends on several factors out of my control, but I promise
that [M.] will contact you as soon as I am able to access Skype.
(Pet. Ex. 2.)
Petitioner testified that he was shocked when he
received this email, as he had never consented to the child
obtaining a visa for travel to the United States. 15
Petitioner’s friend and law partner, Marek Bartkowiak, testified that he
was present at the time petitioner received and read respondent’s August 28,
Petitioner testified that he did not know from the email how
long respondent’s trip would be, but understood from later
conversations that it would last about one month.
the time of the August 28, 2013 email, petitioner did not have a
phone number for respondent in the United States, and there is
no evidence that respondent had a telephone number in New York.
Respondent called petitioner once she was able to
access a phone.
(See Tr. 56.)
During the call, respondent
informed petitioner that she was pregnant with a second child.
Petitioner testified that respondent told him over
the phone that she and M.K. would stay in the United States for
approximately one year in order to ensure that the second child
received American citizenship. 16
Both respondent and
Mr. Michalowski testified that they never told petitioner that
they would return to Poland after a year.
that, at the time she left for the United States, she intended
to become a permanent resident, if possible, but she did not
know how M.K. would adjust to living in the United States and
whether she and her husband would be able to find work and
achieve financial security. (Tr. 404.)
(Tr. 357, 404; see Tr.
2013 email, and observed that petitioner appeared shocked at learning of
respondent’s travel to the United States. (Tr. 230-31.)
Petitioner also told his mother that respondent and the child would be
staying in the United States for a year. (Tr. 114-15.)
On September 27, 2013, after speaking to respondent on
the phone, petitioner wrote the following email to respondent:
I understand that as of today you are going to stay in the US for
a year. You know very well that I will not see [M.] and she won’t
see me until the next year. [M.] and I are very eager to talk on
Skype. She misses me too. Calling a cell phone from Poland is
very expensive - PLN 2.00/min. You presented me with a fait
accompli. So be it. I hope you will get what you want and wish
you luck. I would like to get your address so that I can send
[M.] a gift. I am not going to make your life difficult so you
don't have to be afraid. I simply have my own opinion of the
whole situation and we always differed in that respect. If you
can, send me an e-mail to tell me how she is doing, how her
kindergarten is and what she thinks of the whole situation. I
love [M.] very much and I want all the best for her. If you
moved there permanently, please do not lie to me - just tell me
the truth. That’s all.
P.S. Maybe I will manage to come in the future and I would like
very much to do so because [M.] will always be the most important
person to me.
(Pet. Ex. 4.)
Petitioner testified that his September 27, 2013
email did not provide his consent for the child’s stay in the
He also testified that respondent
never contacted him to correct his understanding, as expressed
in the above email, that respondent would be staying in the
United States for one year.
that she did not respond to this email to correct any
understanding that petitioner may have had regarding the length
of her stay in the United States.
(See Tr. 490-92.)
also testified that, although he understood that respondent
would be staying in the United States for only one year, he did
not believe that she would stay for only one year.
At the hearing, petitioner testified repeatedly and
emphatically that he did not consent to M.K.’s removal from
Poland and that her removal and relocation to the United States
violated his rights under Polish and international law.
He further stated that he never expressed any consent
to the child’s continued residence in the United States, but
instead that his September 27, 2013 email indicated his
“reflection” on or “response” to the situation, which was that
he was placed in a fait accompli by respondent’s actions.
Respondent and Mr. Michalowski eventually purchased
cell phones and phone cards in order to call individuals in
Poland, including petitioner, and provided petitioner with a
telephone number at which he could call respondent and the
Respondent testified that she never took
steps to prevent petitioner from talking to the child; rather,
she encouraged the child to speak to petitioner.
She testified that she gave M.K. the option to call
petitioner whenever she wanted, but M.K. expressed that she did
not want to speak to petitioner because he had told her not to
associate with her stepfather, Mr. Michalowski, who petitioner
called “a stranger.”
Petitioner reported difficulty maintaining contact
with the child in the months after her removal.
Pet. Ex. 3.)
(Tr. 61; see
Respondent did not have home internet access when
she moved to the United States and only obtained the ability to
connect to Skype in July 2015.
(See Pet. Ex. 5; Tr. 430.)
October 2013, the parties exchanged emails concerning
petitioner’s telephone communications with the child.
email dated October 24, 2013, respondent asked petitioner not
“to question [M.K.] about [respondent and her husband’s] private
life, such as issues relating to [respondent’s] pregnancy,
etc.”, questioned petitioner’s failure to pay child support 17
since the move, and informed petitioner that she would “consider
the merits” of petitioner’s conversations with M.K., since they
had “evoke[d] trembling, frustration, and negative emotions” in
(Pet. Ex. 5.)
Petitioner responded via email on October 26, 2013,
expressing frustration regarding the lack of information from
respondent about the child and informing respondent that he
“decided to legally secure [child support payments] until [M.K.]
returns from the United States to Poland.”
(Pet. Ex. 6.)
While respondent and the child lived in Poland, petitioner deposited child
support payments into an account operated by respondent on behalf of the
child. (Tr. 160-161.) Petitioner stopped making those payments after the
child’s removal. (Tr. 165-66, 173; see Stip. ¶ 48.) On February 13, 2015,
petitioner opened a bank account in the child’s name and deposited 2500
zlotys, approximately six months of child support payments, into that
account. (Resp. Ex. AA; Tr. 218-20.)
Petitioner also wrote, “Your unilateral decision regarding the
departure of our child for a year to the U.S. deprived me of
personal and continued contact with [M.K.] as previously agreed
. . . Your illegal actions force me to take legal action.”
Legal Action by Petitioner
Petitioner continued to believe that M.K.’s removal in
August 2013 from Poland and retention in the United States was
illegal and began to file documents reflecting his position.
On December 30, 2013, petitioner filed a
Notification of a Suspected Crime with the Polish authorities, 18
averring that respondent and Mr. Michalowski abducted the child
on or about August 15, 2013, “by way of a trip to the United
States” without petitioner’s consent.
(Stip. ¶ 34; Joint Ex.
He further alleged that he learned a month after the
abduction that the three would remain in New York until
September 2014 and stated that the “decision of [respondent]
regarding their stay in US territory” was unilateral and
unlawful and the “abduction of and the detention of [his] child
must be recognized as unlawful.”
that, at the time he filed the Notification of a Suspected
Crime, he was very upset about having sporadic contact with M.K.
On February 26, 2014, the Prosecutor’s Office in Olsztyn, Poland
acknowledged receipt of the report. (Stip. ¶ 36.)
and felt badly about having to take legal action in order to
have contact with his daughter.
On February 14, 2014, petitioner filed a “Petition for
Return of the Child on the Basis of the Convention Concerning
Civil Aspects of Kidnapping a Child Abroad” in Poznan, Poland
stating that respondent kidnapped the Child on August 15, 2013
“under the excuse of leave for further vacation to Croatia” and
that the “[p]robable goal is New York.”
(Stip. ¶ 35; Joint Ex.
Petitioner testified that at the time he filed both
documents with the Polish authorities, he was “hopeful” that
M.K. would be returned to Poland after a year but had “no
certainty” that she would be returned.
On March 12, 2014, petitioner filed a report with the
police in Olsztyn, Poland, alleging that the child was kidnapped
by respondent and that such kidnapping occurred on August 15,
(Joint Ex. 14.)
Over the course of one week, from March
19 to March 26, 2014, petitioner sent respondent four emails
stating that he had not been able to reach respondent and
demanding telephone contact with M.K. 19
(Pet. Exs. 16-19; Tr.
Earlier email communications from respondent to petitioner indicated that,
at different points in time, petitioner would speak to the child
approximately every two weeks. (Pet. Ex. 14; Tr. 159-60, 437-38.)
On March 27, 2014, the Polish Central Authority sent
petitioner’s Hague Convention application to the U.S. Department
(Stip. ¶ 38.)
On May 26 and June 26, 2014,
petitioner sent letters to the U.S. Department of State in
support of his application stating that respondent was lying
when she stated that she and the child were “going to vacation
to visit her grandfather to New York City in August 2013.”
(Stip. ¶¶ 39-40; Joint Exs. 16-17.)
continued to ask respondent about her plans for M.K.’s return to
Poland, noting that almost one year had passed since their
departure to the United States.
(Pet. Ex. 21; Tr. 80-81.)
Petitioner testified that he became certain at this time,
approximately August 10, 2014, that respondent would not return
to Poland with the child.
(Tr. 81-82; see also Pet. Ex. 21.)
On February 20, 2015, petitioner filed the instant action.
generally ECF No. 1, Petition.)
The Child’s Life in New York Since August 2013
Respondent, Mr. Michalowski, and the child received
green cards several months after their arrival in the United
States and now enjoy permanent resident status.
Tr. 348, 397; see also Joint Ex. 9.)
(See Stip. ¶¶ 42-43.)
(Stip. ¶ 33;
They continue to reside in
Soon after arriving in the
United States, Mr. Michalowski found a construction job and
later transitioned into a managerial job in manufacturing, where
he currently works.
Respondent gave birth to her
second daughter in the United States in the spring of 2014.
(Stip. ¶ 7; Tr. 347.)
Respondent completed a training program
and, at the time of the hearing, expected to begin work in
(Stip. ¶ 46.)
Upon arriving in New York, the child began
kindergarten in Greenpoint, Brooklyn, which she attended for
approximately four months before transferring to a school in
(Stip. ¶¶ 44-45.)
She has attended the
elementary school in Maspeth since January 2014 and recently
began the second grade.
(See Stip. ¶ 45.)
M.K. has a close
relationship with both her sister and her stepfather.
She is doing well in school and has learned to speak
fluent English in the two years she has been in New York.
418; 442-43; see also Resp. Exs. F, M, P.)
She will begin
attending Polish school in the fall of 2015 to learn how to read
and write Polish.
At the request of the respondent, the court
interviewed the child informally with the parties’ counsel
present and without her parents present.
(See Tr. 413-425.)
M.K. appeared to be intelligent, articulate, and understanding
of the importance of answering questions truthfully.
at length about her activities over the summer, her experience
at school, and her younger sister and family.
She did not immediately recall anything about Poland, other than
that her father would give her “slaps.”
questioned, M.K. remembered her grandparents in Poland and
reported that both respondent and Mr. Michalowski’s mothers had
come to visit, as well as other relatives of respondent’s.
M.K. stated that she did not want to return to Poland
because she would miss her family, New York, “all that stuff I
have” in New York, and that she wanted to stay with her mother.
She stated she did not want to visit her father in Poland. (Tr.
Petitioner testified that, at the time of the hearing,
he is able to speak to M.K. at most once a week due to
restrictions by respondent.
testified that she has had limited contact with the child since
the child moved to the United States and that she has not
visited the child because she did not have her address.
Neither petitioner nor any member of his family has
visited the child in the United States since her arrival, though
respondent had informed petitioner that he was welcome to visit
the child in New York.
(See Tr. 116, 436; Stip. ¶ 49.)
Petitioner told respondent that he was financially unable to
travel to New York.
On February 20, 2015, petitioner filed the instant
action pursuant the Hague Convention, petitioning the court,
inter alia, to (1) direct the prompt return of M.K. to Poland;
(2) prohibit M.K.’s removal from this district; (3) require
respondent to immediately surrender any travel documents to law
enforcement; (4) command respondent to appear with M.K., giving
petitioner immediate access to M.K., and show cause why M.K. has
been kept from petitioner; and (5) direct respondent to pay
petitioner’s legal costs and fees.
(See ECF No. 1, Petition.)
On February 26, 2015, the court issued an order to
show cause, ordering (1) that respondent appear with M.K. before
the court on March 5, 2015, to show cause why M.K. has been kept
from petitioner and why the court should not issue an order
pursuant to the Hague Convention directing the relief sought by
petitioner (described above); (2) that during the pendency of
this action, respondent is prohibited from removing M.K. from
this court’s jurisdiction; (3) that respondent serve and file a
response no later than March 3, 2015; and (4) that petitioner
serve the Order to Show Cause and underlying petition and motion
papers upon respondent by personal service by February 27, 2015.
(ECF No. 7, Order to Show Cause.)
On March 2, 2015, respondent wrote the court
requesting an extension to file opposition papers and that the
court appoint pro bono counsel and provide a Polish interpreter.
In her letter, she stated that M.K. was not wrongfully removed
from Poland because petitioner consented to her relocation.
Respondent further stated that petitioner did not exercise his
custodial rights while respondent and M.K. lived in Poland, and
that he did not attempt to reunite with M.K. in the two years
that she has resided in the United States.
(See ECF No. 12,
Motion for Extension of Time to File Opposition Papers; ECF No.
13, Letter from Respondent filed 3/2/15.)
On March 3, 2015, the
court granted respondent an adjournment and directed the court’s
pro se office to post plaintiff’s request for pro bono counsel.
(Electronic Order dated 3/3/15.)
On March 11, 2015, counsel for respondent appeared in
this action and the parties filed a stipulation extending the
time for respondent to respond to the Amended Petition and the
court’s order to show cause until March 24, 2015, and requesting
a status conference before the court.
(See ECF Nos. 19, 20,
Respondent, with the child, and counsel for petitioner and
respondent appeared for a status conference on April 2, 2015.
Petitioner did not attend.
At the conference, counsel for
petitioner advised the court that petitioner was unlikely to
appear in person for any of the proceedings, including any
evidentiary hearing or trial.
An evidentiary hearing was
scheduled for June 1, 2015.
Following the conference, the court referred the
parties to Judge Pohorelsky for expedited pre-hearing discovery
and a settlement conference.
The parties appeared for mediation
with Judge Pohorelsky on May 5, 2015, and participated in
telephone conferences with Judge Pohorelsky on May 11, 13, 18,
21, 29, and June 5, 2015.
Due to the parties’ ongoing
settlement discussions, the hearing date was adjourned without a
On June 5, 2015, the parties filed a joint letter
advising the court that they were unable to agree to the terms
of a settlement and requested a hearing date.
After pre-trial briefing on evidentiary matters and
the court’s attendant rulings on those matters (see ECF Nos. 50,
51, 53; Electronic Order dated 7/29/15), a hearing was held on
August 3, 4, and 5, 2015.
8/4/15, and 8/5/15.)
(See ECF Minute Entries dated 8/3/15,
The parties filed a joint stipulation of
certain facts in advance of the hearing.
Stipulation of Facts dated 8/2/15.)
(ECF No. 65, Joint
Petitioner appeared by
videoconference from Poland for most of the hearing and waived
his appearance for certain portions of the proceeding.
parties testified and presented testimony from witnesses who
appeared in person, via telephone, and via video conference.
The court granted the parties’ requests to submit post-hearing
briefing and scheduled such briefing to conclude on August 26,
(See Electronic Order dated 8/6/15.)
The parties filed their post-hearing briefs on August
(ECF No. 71, Petitioner’s Post-Hearing Brief (“Pet’r
Br.”); ECF No. 72, Respondent’s Post-Hearing Memorandum of Law
On August 7, 2015, respondent requested a two-
day extension to file replies to the parties’ post-hearing
submissions, which the court granted (see ECF No. 69; Electronic
Order dated 8/11/15); the parties filed their replies on August
28, 2015 (ECF No. 74, Petitioner’s Reply (“Pet’r Reply”); ECF
No. 75, Respondent’s Reply (“Resp. Reply”)).
The Hague Convention governs both the wrongful removal
and wrongful retention of children from their habitual
See Hague Convention, art. 1(a); 42 U.S.C. §
Both the United States and Poland are signatories
to the Hague Convention, and it was implemented in the United
States when Congress adopted ICARA.
S. Ct. 1983, 1989 (2010).
See Abbott v. Abbott, 130
“The Hague Convention is designed to deter parents or
other guardians from unilaterally taking children from the
country of their habitual residence to another country that
might provide a ‘more sympathetic forum for a custody dispute.’”
Radu v. Toader, 805 F. Supp. 2d 1, 6 (E.D.N.Y. 2011) (quoting
Haimdas v. Haimdas, 720 F. Supp. 2d 183, 196 (E.D.N.Y. 2010)).
Moreover, “[t]he goal of the [Hague] Convention . . . is to
restore the status quo, i.e., to return the child to the country
of his or her habitual residence so that a custodial
determination can be made there.”
“This goal is based on
the notion that the most suitable forum for a custody dispute is
the country of the child’s ‘habitual residence.’”
Poliero v. Centenaro, No. 09–CV–2682, 2009 WL 2947193, at *8
(E.D.N.Y. Sept. 11, 2009)).
Accordingly, this court is
“strictly prohibited from adjudicating the merits of the custody
dispute, and [is] limited solely to determining whether the
child should be returned.”
(quoting Poliero, 2009 WL
2947193, at *9).
Prima Facie Elements
Petitioner and respondent bear specific burdens of
proof set forth by ICARA.
First, petitioner has the prima facie
burden of proving, by a preponderance of the evidence, that M.K.
has been “wrongfully removed or retained within the meaning of
42 U.S.C. § 11603(e)(1)(A).
The removal and
retention of a child abroad is considered wrongful when:
(a) it is in breach of custody rights attributed to a
person, an institution or another 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 the removal or retention
those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal
Hague Convention art. 3.
Accordingly, to present a prima facie case, petitioner
must prove by a preponderance of the evidence that: (1) M.K. was
habitually resident in Poland, but was removed to or retained in
the United States; (2) the removal or retention was in breach of
petitioner’s custody rights under Polish law; and (3) petitioner
was exercising those rights at the time of M.K.’s removal to or
retention in the United States.
Gitter v. Gitter, 396 F.3d 124,
130-31 (2d Cir. 2005).
“[I]f a court deems that there has been a wrongful
removal or retention of a child under the age of sixteen, and
the petition was brought within a year of the wrongful removal
or retention, the country in which the child is located must
‘order the return of the child forthwith,’ unless the respondent
is able to raise an affirmative defense.”
Radu, 805 F. Supp. 2d
at 7 (quoting Hague Convention art. 12); see Adamah v. Tayson,
No. 09-cv-5477, 2010 WL 2265308, at *4 (E.D.N.Y. May 28, 2010)
A respondent may assert four possible defenses under
“Whether the respondent is required to make out
an affirmative defense by a mere preponderance of the evidence
or by clear and convincing evidence depends on the affirmative
A.A.M. v. J.L.R.C., 840 F. Supp. 2d 624,
630 (E.D.N.Y. 2012) (citing Friedrich v. Friedrich, 983 F.2d
1396, 1400 (6th Cir. 2012)).
“First, a respondent may show by clear and convincing
evidence that there is a ‘grave risk that [the child’s] return
would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.’”
A.A.M., 840 F. Supp. 2d at 632 (quoting Hague Convention, art.
13(b)); see 42 U.S.C. § 11603(e)(2)(A).
“Second, he may show by clear and convincing evidence
that the return of the child ‘would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.’”
840 F. Supp. 2d at 632 (quoting Hague Convention, art. 20); see
42 U.S.C. § 11603(e)(2)(A).
“Third, he may show by a preponderance of the evidence
that the return proceeding was commenced more than one year
after the child’s removal or retention and that the child has
become settled in its new environment.”
A.A.M., 840 F. Supp. 2d
at 632 (citing Hague Convention, art. 12); see 42 U.S.C. §
“And, fourth, he may show by a preponderance of the
evidence that ‘the person, institution, or other body having the
care of the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
A.A.M., 840 F. Supp. 2d at 632 (quoting Hague
Convention, art. 13(a)); see 42 U.S.C. § 11603(e)(2)(B).
Finally, even if a respondent can establish one or
more of the above affirmative defenses, the district court
retains the discretion to permit the child to remain with the
respondent or order the child’s return.
In re D.T.J., 956 F.
Supp. 2d 523, 529 (S.D.N.Y. 2013) (internal citations omitted).
CONCLUSIONS OF LAW
The court first evaluates petitioner’s prima facie
case and then turns to respondent’s affirmative defenses under
the Hague Convention, including the Article 12 “now settled”
defense, which is the focus of the parties’ post-hearing
Based upon a review of the evidentiary record, the
court finds that respondent has satisfied the requirements of
the Article 12 defense as a matter of law and, so finding,
declines to grant the petition.
As an initial matter, the court addresses petitioner’s
objection to the court’s consideration of the child’s views.
(See Pet’r Br. at 24-25.)
The Hague Convention does not set a
minimum age for taking into account a child’s opinion.
Explanatory Report ¶ 30.
Although the parties stipulated to the
fact that the child is well settled in the United States and
does not want to return to Poland (Stip. ¶¶ 50-51), the court
may consider M.K.’s testimony when determining whether she is
now settled in New York or whether a grave risk of harm exists
upon her return to Poland, but it must take into account M.K.’s
age and degree of maturity in determining how much weight to
give her views.
Although the court does not base its decision
to deny the petition solely on M.K.’s objection, in light of the
court’s assessment that M.K. is very intelligent, articulate,
and mature for her young age, the court will consider M.K.’s
comments during her interview in the context of the record as a
whole in determining whether she is well settled in the United
States and, if so, whether to deny the petition on the basis of
See Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.
2001) (“Blondin IV”) (concluding that the district court did not
err in finding that an eight-year-old was old enough and mature
enough for her views to be considered as one factor in its grave
III. Petitioner’s Prima Facie Case
“Neither the Hague Convention nor its implementing
legislation defines ‘habitual residence,’” Villegas Duron v.
Arribada Beaumont, 534 F.3d 142, 147 (2d Cir. 2008), but the
Second Circuit has articulated the following standard:
First, the court should inquire into the shared intent of those
entitled to fix the child’s residence (usually the parents) at
the latest time that their intent was shared. In making this
determination the court should look, as always in determining
intent, at actions as well as declarations. Normally the shared
intent of the parents should control the habitual residence of
the child. Second, the court should inquire whether the evidence
unequivocally points to the conclusion that the child has
acclimatized to [a] new location and thus has acquired a new
habitual residence, notwithstanding any conflict with the
parents’ latest shared intent.
Gitter, 396 F.3d at 134; see also Villegas Duran, 534 F.3d at
147 (adhering to Gitter’s articulation of the standard).
Second Circuit has confirmed that the “parties’ shared intent is
a ‘question of fact to which [it] defer[s] to the district
Daunis v. Daunis, 222 F. App’x 32, 34 (2d Cir. 2007)
(quoting Gitter, 396 F.3d at 132); see Adamah, 2010 WL 2265308,
at *5 (quoting Gitter, 396 F.3d at 133) (“The intent of the
parties is a ‘question of fact’ to be determined by the district
In this case, the parties do not dispute that, until
August 16, 2013, the date respondent removed the child from
Poland, the child’s habitual residence was Poland. 20
Violation of Exercised Custody Rights
“Under the [Hague] Convention and ICARA, a federal
court looks to the law of the child’s place of habitual
residence to determine whether a petitioner possessed lawful
rights of custody at the time of a child’s removal.”
Powers v. Beveridge, 125 F. Supp. 2d 634, 638 (E.D.N.Y. 2000)
(citing Hague Convention, art. 3).
“Under the Hague Convention,
custody rights are defined as “rights relating to the care of
the person of the child and, in particular, the right to
determine the child’s place of residence.”
Poliero, 2009 WL
2947193, at *11 (citing Hague Convention, art. 5).
three possible sources of ‘rights of custody:’ judicial or
administrative decisions, legally binding agreements between the
parties, and operation of the law of the State.”
125 F. Supp. 2d at 638 (quoting Hague Convention, art. 3).
In her pre-hearing memorandum, respondent argued that, to the extent
petitioner claims that the child’s presence in the United States did not
become wrongful until August 16, 2014, one year after her arrival in the
United States, the child’s habitual residence had shifted to New York by that
date. (ECF No. 60, Respondent’s Pre-Hearing Memorandum of Law dated 7/29/15,
at 12 n.4.) Because the court finds that petitioner did not consent to the
child’s removal, and has not proven by a preponderance of the evidence that
he later acquiesced to the child’s stay in the United States for a period of
one year, as discussed further below, the court considers the child’s
habitual residence only at the time of her removal from Poland.
There are no judicial or administrative decisions or
legally binding agreements defining the parties’ rights of
The parties have stipulated that both petitioner and
respondent have parental authority, including custody, over the
child under Polish law. 21
(Stip. ¶ 21; see Stip. ¶ 20.)
Accordingly, respondent’s removal of M.K. to the United States,
absent petitioner’s consent, 22 would constitute a breach of
petitioner’s custody rights.
See In re Skrodzki, 642 F. Supp.
2d 108, 115 (E.D.N.Y. 2007).
Respondent argues, however, that petitioner has not
proven that he was exercising his custodial rights at the time
of the child’s removal.
(Resp. Br. at 15 n.9.)
cites his involvement in raising M.K. during her first few
years, his efforts to maintain contact with her after his
Polish family law provides that (1) “[a] child remains under parental
authority until the age of maturity”; (2) “[p]arental authority is exercised
by both parents” unless the court determines that it is in the child’s
interest to “suspend, limit, or deprive one or both parents of parental
authority”; (3) “[p]arental authority . . . involves the right and obligation
of the parents to exercise custody over the person and property of a child
and to raise the child with a due respect for his rights and dignity”; and
(4) “[i]f both parents have parental authority, each of them is obliged and
authorized to exercise that authority.” (See Stip. ¶ 20 (citing Polish
Family Law, Chapter 2, Articles 92, 95, 97).)
22 Respondent has argued separately that “[p]etitioner consented to the
[c]hild’s removal to the United States for the purpose of obtaining and
exercising permanent resident status.” (Resp. Br. at 24.) Under that
defense, discussed further below, a district court is not bound to return a
wrongfully removed or retained child if the respondent demonstrates by a
preponderance of the evidence that the petitioner “had consented to or
subsequently acquiesced in the removal or retention.” Mota v. Castillo, 692
F.3d 108, 117 (2d Cir. 2012) (citing Hague Convention, art. 13(a) and 42
U.S.C. § 11603(e)(2)(B)).
separation from respondent, and his participation in the
passport acquisition process as evidence of his exercise of his
Courts in this Circuit have recognized that
the standard for evaluating whether a petitioner is exercising
custody at the time of removal is fairly lenient.
See, e.g., In
re D.T.J., 956 F. Supp. 2d 523, 533 (S.D.N.Y. 2013); Souratgar
v. Fair, No. 12 CIV. 7797, 2012 WL 6700214, at *4 (S.D.N.Y. Dec.
26, 2012) aff’d sub nom. Souratgar v. Lee, 720 F.3d 96 (2d Cir.
2013); Olguin v. Cruz Santana, No. 03 CV 6299, 2004 WL 1752444,
at *4 (E.D.N.Y. Aug. 5, 2004).
A petitioner can shift the burden of disproving his
actual exercise of his custodial rights to the respondent by
providing “some preliminary evidence that he actually took
physical care of the child, a fact which normally will be
relatively easy to demonstrate.”
Olguin, 2004 WL 1752444, at *4
(citing Elisa Perez–Vera, Explanatory Report: Hague Conference
on Private International Law, in 3 Acts & Documents of the
Fourteenth Session 426, 449 (1980) (“Explanatory Report”)).
is not the role of the court to decide how well petitioner
exercised his custody rights.
The Sixth Circuit has held that:
if a person has valid custody rights to a child under the law of
the country of the child's habitual residence, that person cannot
fail to “exercise” those custody rights under the Hague
Convention short of acts that constitute clear and unequivocal
abandonment of the child. Once it determines that the parent
exercised custody rights in any manner, the court should stop—
completely avoiding the question whether the parent exercised the
custody rights well or badly. These matters go to the merits of
the custody dispute and are, therefore, beyond the subject matter
jurisdiction of the federal courts.
Id. at *5 (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066
(6th Cir. 1996)). 23
Respondent cites no authority for her proposition that
petitioner’s involvement in raising the child while she lived in
Poznan, visits with respondent and the child after they moved to
Olsztyn, payment of child support, and efforts to communicate
with the child are legally insufficient to establish that
petitioner exercised his custodial rights.
The fact that
petitioner’s visits with the child were irregular at times and
that respondent was the child’s primary caregiver since her
birth do not mandate a finding that petitioner failed to
exercise custodial rights under the Convention, as applied in
the case law of this Circuit.
Accordingly, the court finds that petitioner has
established a prima facie case of wrongful removal under the
Hague Convention and turns to respondent’s affirmative defenses.
Respondent’s Affirmative Defenses
Petitioner’s Consent or Acquiescence
In its legal analysis of the Convention, the Department of State noted that
“[v]ery 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.” Hague
International Child Abduction Convention: Text and Legal Analysis, 51 Fed.
Reg. 10,494 at 10,507 (Mar. 26, 1986).
Respondent argues that petitioner consented to M.K.’s
removal to the United States for the purpose of obtaining and
exercising permanent resident status.
(See Resp. Br. at 24.)
Article 13 of the Convention provides that “the judicial or
administrative authority of the requested State is not bound to
order the return of the child if . . . the person . . . having
care of the person of the child . . . consented to or
subsequently acquiesced in the removal or retention.”
13(a) does not provide that if a parent consents to removal of
the child for a period, under certain conditions or
circumstances, that retention of the child beyond those
conditions or circumstances is necessarily permissible.”
Hofmann v. Sender, 716 F.3d 282, 294-95 (2d Cir. 2013) (quoting
Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir. 2005)) (internal
quotation marks omitted).
The court next turns to the defense of acquiescence,
notwithstanding that it is the petitioner’s counsel who asserts
that petitioner acquiesced to his child’s retention in the
United States for a limited period of one year, a position
disputed by the respondent and petitioner himself.
of acquiescence is “analytically distinct” from the defense of
In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005)
(citing 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.”
A showing of acquiescence requires a higher degree of
formality; either a formal statement by petitioner or a
consistent attitude of acquiescence over a significant period of
Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253, at *7
(E.D.N.Y. May 7, 2008) (citing Friedrich v. Friedrich, 78 F.3d
1060, 1070 (6th Cir. 1996)).
Thus, although the “consent and
acquiescence inquiries are similar,” consent “need not be
expressed with the same degree of formality as acquiescence in
order to prove the defense under article 13(a).”
Circuit has held that once a district court finds ex ante
consent, its inquiry is complete because a petitioner’s ex post
non-acquiescence would not revive his or her right of return
under the Convention.
Gonzalez-Caballero v. Mena, 251 F.3d 789,
794 (9th Cir. 2001).
The court finds that respondent’s proof of
petitioner’s purported consent to the child’s removal falls
The record demonstrates that petitioner knew from an
early point in his relationship with respondent that she wanted
to become a permanent resident of the United States.
also establishes that petitioner accompanied respondent to a
passport office in Poland after she requested that he consent to
the child obtaining a passport.
The parties dispute, however,
whether respondent told petitioner that she planned to move to
the United States with M.K. prior to petitioner’s agreement to
help respondent obtain a passport for M.K.
circumstantial evidence crediting respondent’s version of events
over petitioner’s, respondent is unable to prove by a
preponderance of the evidence that petitioner consented to
M.K.’s removal to the United States.
There is no indication of petitioner’s subjective
intent at the time prior to the child’s removal other than his
hearing testimony that he did not consent to her removal.
In re Kim, 404 F.Supp.2d at 516 (“The key to the consent inquiry
is the petitioner’s subjective intent, including the nature and
scope of the intent.”).
Respondent’s assertion that she and
Michalowski did not consider a trip to Croatia until June 2013,
after petitioner had consented to a passport for M.K., does not
necessitate a finding that petitioner knew of respondent’s green
card application, knew of her intention to move to the United
States with M.K., or, most significantly, consented to such a
Accordingly, the Article 13(a) consent defense does not
Article 13(b) of the Hague Convention provides that
the signatory state “is not bound to order the return of the
child” if “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.”
respondent bears the burden of establishing by clear and
convincing evidence that the exception applies, 42 U.S.C. §
11603(e)(2)(A), subsidiary facts may be proven by a
preponderance of the evidence.
Danaipour v. McLarey, 286 F.3d
1, 13 (1st Cir. 2002); see also In re Lozano, 809 F. Supp. 2d
197, 224 (S.D.N.Y. 2011).
The Second Circuit considered the “grave risk”
exception at length in Blondin v. Dubois, 189 F.3d 240 (2d Cir.
1999) (“Blondin II”) and Blondin IV.
The court explained that
mere showings of “inconvenience or hardship” do not amount to a
“grave risk” of harm.
Blondin IV, 238 F.3d at 162.
“grave risk” of harm exists where “the child faces a real risk
24 In In re D.A., which respondent cites in support of her consent argument,
the court found that testimony from the respondent, D.A., and D.A.’s 22-yearold stepsister, as corroborated by a contemporaneous audio recording of the
petitioner stating that he had given permission for them to move, was
sufficient to establish the petitioner’s consent to D.A.’s removal and
retention thereafter. See In re D.A., No. 14-CV-5836, 2015 WL 2344079, at *6
(E.D.N.Y. May 14, 2015).
of being hurt, physically or psychologically, as a result of
The court cited with approval the Sixth
Circuit’s observation that a “grave risk” to the child presents
itself in two situations:
(1) where returning the child means sending him to ‘a zone of
war, famine or disease’; or (2) ‘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.’
Id. (quoting Friedrich, 78 F.3d at 1069 (emphasis added)).
if a court finds there is a grave risk to the child, the court
“must first determine whether there are any ameliorative
measures that could be taken to mitigate this risk and enable a
child to return safely to his home country” before refusing
Reyes Olguin v. Cruz Santana (In re Reyes
Olguin), No. 03 CV 6299, 2005 WL 67094, at * 6 (E.D.N.Y. Jan.13,
2005) (citing Blondin IV, 238 F.3d at 157).
In this Circuit, undisputed evidence of a risk of harm
will not satisfy the grave risk exception if the risk of harm
proven lacks gravity.
See Blondin IV, 238 F.3d at 162.
District courts relying on the Article 13(b) defense to deny a
petition for return have relied on “evidence of a sustained
pattern of physical abuse and/or a propensity for violent
Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253, at *8
(E.D.N.Y. May 7, 2008) (citing Elyashiv v. Elyashiv, 353 F.
Supp. 2d 394, 408 (E.D.N.Y. 2005)).
“Evidence of sporadic or
isolated incidents of abuse, or of some limited incidents aimed
at persons other than the child at issue, have not been found
sufficient to support application of the ‘grave risk’
Id. (internal citations omitted).
At the hearing, the credible testimony of Ms. Sloka
established that she witnessed petitioner, on at least one
occasion, spank the child and throw objects near the child or
toward the baby seat where she was sitting.
M.K. informed the
court that she remembered petitioner giving her “slaps” in
Ms. Sloka, respondent’s mother, and respondent
testified that the child told them that petitioner spanked her.
Respondent also credibly testified that petitioner would argue
with her loudly, call her demeaning names, and grab and shake
her, at times in the presence of the child.
adduced evidence of discord in the home during the child’s early
years, no expert testimony or impartial assessment of the
child’s mental state were presented at the hearing.
more, the record before the court is insufficient to demonstrate
by clear and convincing evidence a grave risk that the child’s
return to Poland would expose her to physical or psychological
harm or otherwise place her in an intolerable situation. 25
In finding that respondent has not sustained her burden for the grave risk
defense to apply, the court does not discredit the testimony of respondent,
the child, and respondent’s witnesses regarding the abuse she suffered from
petitioner. Petitioner’s argument that the abuse was not as severe as
Respondent also argues that the potential separation
of the child from her sister and their happy, stable family
would put the child at grave risk of psychological harm.
Resp. Br. at 29.)
Other district courts in this Circuit have
declined to separate siblings where the grave risk defense was
satisfied as to one child but not the other, acknowledging the
grave psychological harm that could result from the separation
See, e.g., Ermini v. Vittori, No. 12 CIV. 6100,
2013 WL 1703590, at *17 (S.D.N.Y. Apr. 19, 2013) aff’d as
amended, 758 F.3d 153 (2d Cir. 2014); Elyashiv v. Elyashiv, 353
F. Supp. 2d 394, 409 (E.D.N.Y. 2005).
In this case, the court
is concerned only with whether to return M.K. to Poland and
finds that the proof offered by respondent is insufficient to
entitle her to the grave risk defense, even though M.K. is
likely to suffer emotional and psychological harm if she is
separated from her sister and family.
Finally, even if the court were to find that M.K.’s
return to petitioner’s custody in Poland would place her in
grave risk of harm, the court is unable to conclude on the
existing record that “there is a lack of ameliorative measures
which the Court could order to protect against the claimed grave
respondent alleged because she did not produce responsive documents to a
request for documents relating to the alleged abuse (see ECF No. 61,
Petitioner’s Pre-Hearing Memorandum dated 7/27/15, at 10 n.11) is baseless.
Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253, at *9
(E.D.N.Y. May 7, 2008) (citing Blondin II, 189 F.3d at 249).
Accordingly, the court declines to deny the petition based on
respondent’s grave risk defense.
Fundamental Principles of Human Rights
Respondent also argues that separating M.K. from her
sister would be a violation of M.K.’s human rights.
Br. at 29.)
Article 20 permits the requested State to refuse
the return of the child when it “would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.”
Article 20 defense must be “restrictively interpreted and
applied” “on the rare occasion that return of a child would
utterly shock the conscience of the court or offend all notions
of due process.”
51 Fed. Reg. at 10,510.
Other courts have
noted the absence of any published federal case law in which the
Article 20 exception was found to have been established.
e.g., Souratgar v. Fair, No. 12 CIV. 7797, 2012 WL 6700214, at
*15 (S.D.N.Y. Dec. 26, 2012) aff’d sub nom. Souratgar v. Lee,
720 F.3d 96 (2d Cir. 2013).
Thus, although the potential
separation of M.K. from her sister would be detrimental to
M.K.’s psychological state, such harm does not sustain a defense
under the stringent Article 20 standard.
The “Now Settled” Exception
Article 12 permits a judicial or administrative
authority to refuse to order the repatriation of a child on the
sole ground that the child is settled in his or her new
environment, if more than one year has elapsed between the
abduction and the petition for return.
Article 12 first sets
forth the general rule that:
[w]here a child has been wrongfully removed or retained . . .
and, at the date of the commencement of the proceedings before
the judicial or administrative authority of the Contracting State
where the child is, a period of less than one year has elapsed
from the date of wrongful removal or retention, the authority
concerned shall order the return of the child forthwith.
Hague Convention, art. 12.
It then provides an exception to
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the
period of one year referred to in the preceding paragraph, shall
also order the return of the child, unless it is demonstrated
that the child is now settled in its new environment.
Id. (emphasis added).
Thus, if more than one year has passed as
of the date that a petitioner commences a judicial or
administrative proceeding in the “Contracting State where the
child is” (i.e., in the United States, not Poland), a
“demonstra[tion] that the child is now settled in its new
environment” may be a sufficient ground for refusing to order
the child’s return.
Blondin IV, 238 F.3d at 164.
must be proven by a preponderance of the evidence.
42 U.S.C. §
The “now settled” defense grew out the Convention
framers’ view that “there could come a point at which a child
would become so settled in a new environment that repatriation
might not be in its best interest.”
Blondin IV, 238 F.3d at
164; see also Explanatory Report ¶ 107.
Therefore, even though
the exception “effectively allows [a court] to reach the
underlying custody dispute, a matter which is generally outside
the scope of the Convention,” Blondin IV, 238 F.3d at 164, it
permits courts to examine the child’s present situation and
circumstances if more than a year has passed since his or her
Article 12 does not define the term “settled.”
However, courts have interpreted it to ask whether “the child is
in fact settled in or connected to the new environment so that,
at least inferentially, return would be disruptive with likely
In re D.T.J., 956 F. Supp. 2d 523, 533-34
(S.D.N.Y. 2013) (internal citations and quotation marks
As an initial matter, petitioner argues that this
defense is not available to respondent because, at the time the
instant petition was filed in this court, one year had not
passed since August 2014, when M.K. was wrongfully retained in
the United States.
(See Pet’r Br. at 19-23.)
In support of
this theory, petitioner’s counsel asserts that, in a September
2013 email (see Pet’r Ex. 4), petitioner acquiesced to M.K.’s
stay in New York for a year from her August 15, 2013 departure
from Poland, or until August 15, 2014.
(See Pet’r Br. at 19-
Accordingly, the court first considers when the one-year
period began to run.
In cases where a child was wrongfully removed from her
country of habitual residence, the one-year period runs from the
date of removal.
In cases of wrongful retention, the
Explanatory Report states that “[t]he fixing of the decisive
date in cases of wrongful retention should be understood as that
on which the child ought to have been returned to its custodians
or on which the holder of the right of custody refused to agree
to an extension of the child’s stay in a place other than that
of its habitual residence.”
Explanatory Report ¶ 108; see also
Taveras v. Morales, 22 F. Supp. 3d 219, 232 (S.D.N.Y. 2014)
aff’d sub nom. Taveras ex rel. L.A.H. v. Morales, 604 F. App’x
55 (2d Cir. 2015); Matovski v. Matovski, No. 06 CIV. 4259, 2007
WL 2600862, at *11 (S.D.N.Y. Aug. 31, 2007).
Petitioner cites two factually distinguishable cases,
In re Cabrera, 323 F. Supp. 2d 1303, 1313 (S.D. Fla. 2004) and
Panteleris v. Panteleris, 30 F. Supp. 3d 674, 685 (N.D. Ohio
2014), in support of his position that the one-year period of
wrongful retention should be computed from August 15, 2014, the
date on which his purported one-year period of acquiescence
In Cabrera, the respondent removed the child from
Argentina to the United States pursuant to a signed agreement
with the petitioner authorizing respondent to travel to the
United States with the child.
Cabrera, 323 F. Supp. 2d at 1309.
The petitioner subsequently agreed to the child staying in the
United States for an additional 15 months, or until June 2003,
but the respondent did not return the child to Argentina at the
end of the agreed-upon period, as extended by the petitioner.
The district court held that the wrongful retention began
in, and the one-year period should run from, June 2003, when the
respondent was supposed to return to Argentina with the child
pursuant to the agreement with the petitioner.
Id. at 1312-13.
Likewise, in Panteleris, the petitioner consented to
the children in question living in the United States with both
the petitioner and the respondent for a defined period of
approximately one year.
Panteleris, 30 F. Supp. 3d at 678-79.
While living together in the United States, the petitioner and
the respondent then agreed that the petitioner would return to
Australia to seek work while the children remained in the United
The Cabrera and Panteleris courts both considered the timeliness of the
petitioners’ petitions under Article 12. Here, the court holds that the oneyear period for the Article 12 “now settled” defense should be calculated
from the date of the child’s removal from Poland and, thus, the Article 12
defense is available to respondent, but the court does not find that the
petition is untimely.
States with the respondent.
Id. at 679.
Several months after
the petitioner returned to Australia in order to financially
support the family while respondent and the children remained in
the United States, the respondent informed the petitioner that
she would not be returning the children to Australia.
Unlike the petitioners in Cabrera and Panteleris, in
this case, petitioner, by his own account, never consented to
M.K.’s removal from Poland and retention in the United States.
Thus, the date of the wrongful removal or retention was August
16, 2013, the date the child arrived in the United States.
Matovski, 2007 WL 2600862, at *11 (“[T]he children were abducted
from their country of habitual residence without petitioner’s
knowledge or consent and brought to America.
As soon as that
occurred, all of the elements of wrongful removal or retention
Petitioner cites no case in which a
reviewing court found that the one-year period began on a date
other than the date of removal in circumstances where a parent
who did not initially consent to the child’s removal from her
habitual residence later purportedly acquiesced to the child’s
stay in the new country for a defined period of time. 27
The line of cases on which petitioner relies for the proposition that the
court should find that M.K. was wrongfully retained one year after her
removal because of petitioner’s purported acquiescence (see Pet’r Br. at 2223) are inapposite. In each case, the children were removed from their
country of habitual residence with the consent of the petitioner, and the
court found that the “now settled” defense was unavailable to the respondent
Regardless, the evidence of record, including
petitioner’s own sworn testimony and contemporaneous actions,
precludes a finding that he did in fact acquiesce to M.K.’s stay
in the United States for a period of one year.
correctly points out, “acquiescence is a question of the actual
subjective intention of the wronged parent, not of the outside
world’s perception of his intentions.”
In re Koc, 181 F. Supp.
2d 136, 151 (E.D.N.Y. 2001) (internal citations omitted).
the hearing, petitioner was unequivocal in his position that he
never consented to the child’s removal to or retention in the
(See Tr. 85-88.)
The September 27, 2013 email
from petitioner to respondent, in which petitioner wrote, “You
presented me with a fait accompli.
So be it.” falls short of a
formal or even unambiguous statement that petitioner
subsequently consented to M.K.’s retention in the United States.
See Laguna, 2008 WL 1986253, at *7 (“A showing of acquiescence
after holding that the wrongful retention began when the agreed-upon date for
the child’s return to the country of habitual residence passed without the
child’s return, rather than on the earlier date that the respondent informed
the petitioner of the respondent’s intention not to return the child.
Chechel v. Brignol, No. 510-CV-164-OC-10, 2010 WL 2510391, at *7 (M.D. Fla.
June 21, 2010); Falk v. Sinclair, 692 F. Supp. 2d 147, 161-64 (D. Me. 2010);
Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321, 1323-25 (N.D. Ga.
Here, the child was removed without petitioner’s consent, as
petitioner has argued emphatically, and there is no evidence in the record of
any agreement between petitioner and respondent as to the date of the child’s
return. Accordingly, the wrongful removal or retention occurred when
respondent brought M.K. to the United States in August 2013. Furthermore, as
discussed further below, the evidence of record does not support a finding
that petitioner acquiesced to the child’s stay in the United States for a
requires a higher degree of formality; either a formal statement
by petitioner or a consistent attitude of acquiescence over a
significant period of time.”) (internal citations omitted).
Petitioner argues that the fact that (1) he stated in
an email in September 2013 that he understood that respondent
and the child would stay in the United States for a year, (2) he
told his mother that the child would stay in the United States
for a year, and (3) he asked respondent by email when he should
expect the child’s return to Poland, noting that almost a year
had passed since her departure, establish “a consistent attitude
of acquiescence” over the one-year period. 28
(See Pet’r Br. at
20-21 (quoting Friedrich, 78 F.3d at 1070).)
Petitioner’s brief conflates any unilateral belief or
understanding that petitioner may have had that respondent would
return with the child after one year with his acquiescence to
the child remaining in the United States for that year.
argument by petitioner’s counsel that petitioner either
consented to or acquiesced via email to a year-long stay is
undermined by petitioner’s conduct and testimony.
not petitioner thought that respondent and the child would
Petitioner also argues that the fact that he filed his instant petition in
federal court more than one year after M.K.’s departure is probative of his
acquiescence to the child’s stay in New York for one year. (See Pet’r Br. at
21.) The court finds this argument unpersuasive to bar application of the
Article 12 defense, as the date of the filing of the federal court petition
would entitle respondent to the defense’s application.
return in August 2014, his actions indicate his lack of consent
to the child’s presence in the United States.
See Taveras, 22
F. Supp. 3d at 236 n.18 (“Petitioner filed her initial request
for return with the Spanish authorities in February 2013,
however, suggesting that even she did not adopt [the position
that the retention did not become unlawful until June 2013].”).
During the time in which petitioner purportedly
consented to M.K.’s retention in the United States, petitioner
repeatedly threatened respondent with legal action and reported
to various Polish authorities that M.K. had been unlawfully
abducted without his consent on August 15, 2013. 29
filed a Notification of a Suspected Crime in Poznan, Poland on
December 30, 2013, several months after he purportedly
acquiesced to M.K.’s stay in the United States for a period of
one year, and alleged that respondent and Mr. Michalowski
abducted the child on August 15, 2013, on a trip to the United
States to which petitioner had not consented, that the “decision
of [respondent] regarding their stay in US territory” was
unilateral and unlawful, and that the “abduction of and the
detention of [his] child must be recognized as unlawful.”
February and March 2013, petitioner filed additional documents
Petitioner testified at the hearing that he prepared the December 2013
Notification of a Suspected Crime and February 2014 Petition for Return of
the Child without assistance from anyone else. (Tr. 73, 75.)
in both Poznan and Olsztyn alleging that M.K. was kidnapped on
August 15, 2013.
(See Joint Exs. 13-14.)
In all of the
foregoing documents that petitioner filed, he took the position
that the removal and retention of the child was illegal.
Moreover, as previously noted, petitioner
unequivocally and repeatedly testified that M.K.’s removal and
retention in the United States were without his consent and
violated his rights.
(See Tr. 85-88)
refuted his counsel’s argument that the September 27, 2013 email
to respondent reflected petitioner’s consent to M.K.’s
continuing stay in the United States:
Does [the September 2013] email of yours reflect your
consent to M.’s continuing to stay in the United States?
No, it is not my consent for the stay of M. in the United
Accordingly, the court concludes, based on
petitioner’s unequivocal hearing testimony and the documents in
the record, that the child’s retention in the United States was
wrongful as of the date of her removal on August 16, 2013. 30
Thus, because the petition was filed in February 2015, more than
Although petitioner used August 15, 2013 as the date of the alleged
kidnapping in his filings, the parties have stipulated that respondent and
the child traveled to and entered the United States on August 16, 2013. (See
Stip ¶ 32.)
one year later, the “now settled” defense is available to
Having determined that the “now settled” defense is
available to respondent, the court may consider factors
1) the age of the child; (2) the stability of the child’s
residence in the new environment; (3) whether the child attends
school or day care consistently; (4) whether the child attends
church [or participates in other community or extracurricular
school activities] regularly; (5) the respondent’s employment and
financial stability; (6) whether the child has friends and
relatives in the new area; and (7) the immigration status of the
child and the respondent
in determining whether the child is well settled in her new
See Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir.
2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224
(2014) (internal citations omitted).
In an effort to avoid the
child’s testimony and streamline the presentation of evidence at
the hearing, petitioner conceded that the facts in this case
support a finding, by a preponderance of the evidence, that the
child is well settled in her new environment for purposes of
Article 12 of the Convention.
(Stip. ¶ 50.)
The stipulation and respondent’s exhibits in the
record, the credible testimony from respondent and Mr.
Michalowski, as well as comments from M.K. herself about her
life in New York, indicate that M.K. is thriving in school,
enjoys a vibrant social life and close relationships with her
stepfather, mother, and sister, and is maintaining her ties to
her Polish family and heritage.
Although respondent only
recently found employment, Mr. Michalowski has been stably
employed since their arrival in the United States and has
provided financial support for respondent and M.K.
although M.K. is only seven years old and such adaptation in a
two-year period is not unusual, the court finds that she is old
enough to have developed meaningful connections to the United
States such that she is “well settled” here.
Supp. at 237 (S.D.N.Y. 2014).
See Taveras, 22 F.
Accordingly, in light of the
parties’ stipulation, as well as the evidence presented at
trial, the court finds that M.K. is well settled in New York for
purposes of Article 12 of the Convention.
The court notes that, having found that respondent has
proven the Article 12 defense by a preponderance of the
evidence, it may nonetheless order M.K.’s return to Poland.
Blondin IV, 238 F.3d at 164.
Although the court recognizes that
petitioner was vigilant in pursuing legal avenues for return of
the child in Poland, the court finds that this case is one in
which “the child’s interest in settlement” overcomes
petitioner’s right to adjudicate the custodial dispute in the
child’s country of habitual residence.
See Taveras, 22 F. Supp.
at 240 (citing Lozano, 134 S.Ct. at 1235).
court denies the petition for the child’s return to Poland.
The court is hopeful that the parties’ sincere love
for the child guides them in any future legal proceedings and
that the parties seriously consider resolving this matter
Without any resolution having been reached to date,
the court finds, upon careful consideration of the record, that
the child is now well settled in her new environment within the
meaning of Article 12 of the Hague Convention.
petitioner’s request for relief under the Convention is denied,
the petition is dismissed, and each party shall bear its own
The court’s prohibition on respondent’s removal of the
child from this district during the pendency of this action is
The Clerk of the Court is respectfully requested
to return the child’s passport to respondent, enter judgment in
favor of respondent, and close this case.
October 14, 2015
Brooklyn, New York
Hon. Kiyo A. Matsumoto
United States District Judge
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