346 F. Supp. 3d 295
E.D.N.Y.2018Background
- Petitioner (Mohácsi) filed under the Hague Convention/ICARA seeking return of his son NIR (born in Hungary 2014), alleging Respondent (Herrera) wrongfully removed and retained the child in the U.S. (petition filed May 1, 2018).
- Respondent left Hungary with NIR in August 2015; at that time Hungarian courts had not established Petitioner's paternity/custodial rights.
- A Hungarian court issued a paternity order dated June 16, 2016 that became final (per court experts) on September 2, 2016; Petitioner claims wrongful retention began then.
- Evidence credited by the court shows long-term physical, sexual, and psychological abuse by Petitioner toward Respondent (including videotaped sexual encounters posted online), and expert testimony found Respondent suffers PTSD; the court credited Respondent and psychological expert Dr. Cling.
- Respondent and NIR have lived continuously in New York since August 2015; both are U.S. permanent residents, NIR speaks primarily English, attends school, has Medicaid, and the court found him "settled" in the U.S.
- Court denied Petitioner’s petition: it found Petitioner failed to establish wrongful removal/retention under Hungarian law and, alternatively, Respondent established the Article 13(b) grave-risk defense and Article 12 well-settled defense.
Issues
| Issue | Plaintiff's Argument (Mohácsi) | Defendant's Argument (Herrera) | Held |
|---|---|---|---|
| Habitual residence | NIR was habitually resident in Hungary when removed/retained | No shared parental intent to raise NIR in Hungary; U.S. became habitual residence | Court: Hungary was not established as NIR's habitual residence; by Sept. 2, 2016 U.S. was his habitual residence/at minimum no shared intent existed to fix Hungary as residence |
| Wrongful removal (Aug 2015) | Herrera unlawfully removed NIR from Hungary in Aug 2015 | Petitioner had no custody rights under Hungarian law in Aug 2015 | Court: Removal not wrongful because Petitioner had no custody rights then |
| Wrongful retention (as of Sept. 2, 2016) | Retention became wrongful when Hungarian paternity order became final; Petitioner then had custody rights | By that date NIR had become habituated/settled in U.S.; Respondent intended to raise NIR in NY | Court: Even assuming paternity became final then, NIR was habitually resident in the U.S.; wrongful-retention claim fails |
| Hague exceptions: grave risk & settled child | N/A | There is a grave risk of physical/psychological harm to NIR if returned; NIR is well settled in U.S.; proceedings filed >1 year after removal | Court: Respondent met burden — clear and convincing evidence of grave risk (Art.13b) and by preponderance showed NIR is now settled (Art.12); petition denied |
Key Cases Cited
- Abbott v. Abbott, 560 U.S. 1 (2010) (explains Convention purpose and U.S. implementation)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (shared parental intent and acclimatization test for habitual residence)
- Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (Article 13(b) grave-risk framework; Convention return limited to custody-question, not merits)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (clarifies grave-risk severity and probability standard)
- Guzzo v. Cristofano, 719 F.3d 100 (2d Cir. 2013) (habitual-residence change where child becomes settled abroad)
- Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (father’s later-acquired rights cannot retroactively make an earlier removal wrongful)
- Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012) (definition and factors for "settled"; commencement date for Article 12)
- Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001) (discusses effect of wrongful removal on acclimatization inquiry)