956 F. Supp. 2d 523
S.D.N.Y.2013Background
- Petitioner Gyula Jakubik (father) sued under the Hague Convention/ICARA seeking return of his daughter D.T.J., who was brought from Hungary to the U.S. by respondent Eva Schmirer (mother) on Sept. 6, 2011; petition filed June 14, 2013.
- A Hungarian municipal court had awarded custody to Schmirer in 2006 and granted Jakubik alternating weekend visitation. Petitioner alleged wrongful removal in breach of those custody rights.
- Trial included testimony from the parents, the child (interviewed in camera), teachers, a psychologist, and an immigration-law expert; voluminous Facebook communications between father and daughter were admitted.
- Fact findings: long history of domestic violence by Jakubik against Schmirer; child lived in Hungary until age 13, then in New York with maternal relatives, attending school and forming substantial social ties. Father intermittently exercised visitation.
- Court found prima facie wrongful removal established, but denied the petition because respondents proved multiple Hague affirmative defenses: (1) child is "well-settled" in the U.S., (2) child of sufficient age/maturity objects to return, and (3) repatriation would pose a grave risk of psychological harm.
Issues
| Issue | Plaintiff's Argument (Jakubik) | Defendant's Argument (Schmirer / D.T.J.) | Held |
|---|---|---|---|
| Whether petitioner established prima facie wrongful removal under the Convention | Removal breached petitioner’s custody/visitation rights under Hungarian order | Child and mother initially disputed exercise but later conceded; argued petitioner failed to exercise custody | Court: Prima facie case proven by preponderance; petitioner was exercising custody rights enough to meet standard |
| Article 12 — Is child "well-settled" in the U.S. (one-year exception)? | Argued child not truly settled: undocumented status, mother unemployed, dependent on elderly relatives | Child has stable single home, strong school performance, deep friends/relative ties; unlikely to be removed; settled by preponderance | Court: Found child well-settled despite undocumented status and household dependence; Article 12 defense established |
| Article 13 (unnumbered) — Should court consider child's objection given age/maturity? | Father argued child influenced by mother; not sufficiently mature | Child nearly 15, thoughtful, informed of immigration consequences, psychologist found age-appropriate maturity; expressed considered objection | Court: Child mature enough; her considered objection is entitled to weight — Article 13 defense established |
| Article 13(b) — Would return place child at "grave risk" of physical or psychological harm (including alleged sexual abuse)? | Denied sexual-abuse risk; argued past spousal abuse of mother does not necessarily create grave risk to child; Hungarian courts can manage visitation | Mother/child argued psychological harm from proximity to abusive father and alleged past improper touching; cited father's violent history and abusive online threats | Court: By clear and convincing evidence, repatriation would cause severe psychological harm from proximity to father (grave-risk proven as to psychological harm). Alleged sexual abuse not proven to clear-and-convincing standard. |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (2010) (defines "rights of custody" under Hague Convention)
- Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (framework limiting district courts to Convention issues; discretion re: exceptions)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (Article 12 settled analysis and child objection under Article 13)
- Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012) (immigration status not dispositive for Article 12; multi-factor settled test)
- Souratgar v. Fair, 720 F.3d 96 (2d Cir. 2013) (standards for affirmative defenses under Hague/ICARA)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (elements of wrongful removal and custody exercise)
- Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (construing Convention as limited to return, not custody merits)