A New York Family Lawyers said the parties were married in 1978 in Karachi, Pakistan. Later that year they moved to New York City. In April 1980 the Parties’ child was born in the United States. In March, 1981 the child was taken to Pakistan. A New York Family Lawyer said the defendant claims and a later decision of a court found, that this was done without her knowledge or consent. Defendant in turn took the child from Pakistan, without plaintiff’s knowledge or consent. She brought him to her relatives in Ireland. Thereafter, defendant returned to New York for at most a few weeks. The child remained in Ireland. Both parties started various New York City Family Court proceedings which were eventually abandoned, denied or marked off the calendars. Defendant returned to Ireland.
A New York Custody Lawyer said that three years later, plaintiff served defendant with papers for a divorce. Service was made in Dublin, Ireland. Thereafter, defendant returned to the United States with the child. Defendant did not answer the divorce papers. She claims she thought reconciliation was in the works. The divorce was processed as an uncontested with custody of the child remaining with both parties.
A Long Island Family Lawyer said that during the fall, defendant started proceedings to reopen the divorce based upon lack of jurisdiction and lack of proper service. The parties were in litigation for approximately 1 1/2 years concerning the jurisdiction, economic issues, and visitation. Plaintiff did not see the child during this time.
In 1986, the matters were finally resolved in an order by Judicial Hearing Officer. Custody was not disturbed. However, the child was to reside with defendant. Plaintiff was given only limited supervised visitation which was to slowly increase. This visitation was in part based upon plaintiff’s previous removal of the child to Pakistan. Later, without the consent or knowledge of plaintiff, defendant left New York with the child to settle in London, England. She had family there. A warrant was issued from Kings County Family Court for defendant’s arrest due to the violation of the visitation order.
A Long Island Child Custody Lawyer said on 1988, after tracking defendant and the child to London, plaintiff commenced a wardship proceeding in the High Court of Justice Family Division, Principal Registry, London. He thus submitted himself to the jurisdiction of that court thereby agreeing to abide by its decision. He did not commence a proceeding pursuant to the Hague Convention even though both the United States and the United Kingdom were signatories as of July 1, 1988.
Initially, the court committed the child to the interim care and control of plaintiff pending a hearing. One week later, the child was returned to the care and control of defendant and the matter was adjourned. Plaintiff then returned to the United States. While plaintiff was in New York the warrant of arrest for defendant under Kings County Family Court was vacated. Plaintiff’s application in that court for custody was also denied due to the fact that the courts in London were exerting jurisdiction over the matter.
The litigation resumed in London where the matter returned to the High Court of Justice’s calendar in the middle of December of the same year. That court permitted extended visitation with the child by plaintiff over the holiday season but continued the previous interim award of care and control being with defendant. This visitation appears to have proceeded without problems.
A final order was rendered by the High Court of Justice on 1989. The court ordered that the child to remain a ward of the court in London with care and control to remain with defendant. Plaintiff, however, would have long periods of visitation with the child in the United States, including not less than one month in the summer. It was at the end of this first summer visitation that plaintiff refused to return the child to the United Kingdom and applied to this court to award him custody of the child.
As a result of plaintiff’s failure to return the child, an order has been issued from the High Court of Justice finding that plaintiff has wrongfully retained the child within the meaning of Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The first question is whether the Hague Convention applies. The court is faced with a facially valid order of a court from a country which is a co-signatory of the Convention. Plaintiff raises the issue, however, that since the initial custody decree was made in New York and defendant violated it, the High Court of Justice’s decree is a nullity. He argues that the court’s orders should control.
The problem with this analysis is that plaintiff did not take this court’s order to the High Court of Justice to petition for enforcement under the Hague Convention. Rather he commenced a wardship proceeding in the High Court of Justice. He thereby submitted himself to the jurisdiction of the foreign court so that it could make a de novo custody award in part based upon defendant’s actions in New York. Not being satisfied with the results of that strategy, plaintiff cannot now come back to this court to ask it to ignore the custody/visitation decision and order of a court of a Hague convention cosignatory nation which was subsequent to the decision and order of this court. Plaintiff’s remedies lie in the appellate procedures of the courts of the United Kingdom not a collateral attack in the New York State courts.
Having determined that the High Court of Justice decree is viable this court must now apply the dictates of the Hague Convention to determine how the foreign decree is to be enforced. The child is under 16 years of age thus meeting the under 16 years of age requirements of the Hague Convention (Article 4). Since he has lived in London for over 2 1/2 years, the United Kingdom, a signatory nation, would be the country in which he habitually resides. Thus, the Hague Convention is applicable to the child’s situation (Article 4).
Defendant has now come before this court to seek the return of the child contending that he has been wrongfully retained in the United States. Article 3 of The Hague Convention sets forth the guidelines in this area.
The rights of custody mentioned in sub-paragraph a of the law, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Clearly pursuant to the April 1989 order of the High Court of Justice was to be returned to defendant’s care but without the permission of defendant, plaintiff has failed to do so. In fact, the High Court of Justice has already made a determination that the child is being wrongfully retained. This court concurs that within the meaning of Article 3 of the Hague Convention, The child is being wrongfully detained in this country.
Once the child is declared to be wrongfully retained Article 12 and 13 of the Hague Convention dictate what procedures are to be followed.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
Since the child has been retained in the United States for less than one year unless an exception under Article 13 applies, this court must order the return of the child forthwith (Article 12).
Plaintiff seeks to avoid the child’s return to the United Kingdom by claiming that the exceptions contained in subsection (b) and the next unlettered paragraph of Article 13 apply. Specifically, he argues that there is a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation and that the child, who is of suitable age, objects to the return.
The court notes that a finding that an exception under Article 13b exists must be based upon clear and convincing evidence. The court interviewed the child in camera. Nothing in that interview or in the papers presented to the court on plaintiff’s motion or in plaintiff’s offer of proof indicated that the child’s return to the United Kingdom would pose a grave risk of exposure to physical or psychological harm or that he would be placed in an intolerable situation.
In addition, this court finds that the child has not attained an age and degree of maturity to warrant this court to take account of his views so as to avoid his return to London. He is only 9 years old. The in camera interview revealed that the child did prefer to stay in the United States. However, this appeared to be very much the result of his being wooed by his father during the visitation. Given the child’s age and maturity, this reaction to the summer vacation is to be expected.
Therefore, the exceptions to mandatory return contained in Article 13 do not apply to this case. Pursuant to Article 13 since the child has been wrongfully retained for less than one year he must be returned to the United Kingdom. The court notes, however, that it is not making a determination on custody. The Hague Convention does not permit such a determination at this stage.
The custody issue is now for the courts of the United Kingdom to address. Therefore, it is ordered that plaintiff’s application is denied in its entirety and the child is to be returned to the United Kingdom under defendant’s care. The issues of costs and counsel fees are reserved for future determination by the court upon the submission of papers.
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