CASE

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Case Name

Miltiadous v. Tetervak, 686 F. Supp. 2d 544 (E.D. Pa. 2010)

INCADAT reference

HC/E/US 1144

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States District Court, Eastern Division Pennsylvania

Level

First Instance

Judge(s)
Robreno J.

States involved

Requesting State

CYPRUS

Requested State

UNITED STATES OF AMERICA

Decision

Date

19 February 2010

Status

Final

Grounds

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)

Order

Return refused

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Application of Adan, In re, 437 F.3d 381 (3d Cir. 2006); Arguelles v. Vazquez (In re Hague Abduction Application), No. 08-2030, 2008 WL 913325 (D.Kan. 2008); Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D.Ill. 1989); Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005); Blondin v. Dubois, 19 F.Supp.2d 123 (S.D.N.Y. 1998); Blondin v. Dubois 238 F.3d 153 (2d Cir. 2001); Casimiro v. Chavez, No. 06-1889, 2006 WL 2938713 (N.D.Ga. Oct. 13, 2006); Clarke v. Clarke, No. 08-690, 2008 WL 2217608 (E.D.Pa. May 27, 2008); Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002); Elyashiv v. Elyashiv, 353 F.Supp.2d 394 (E.D.N.Y. 2005); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); Friedrich v. Friedrich, 78 F.3d 1060 (1996); Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); Harris v. Harris, No. 03-5952, 2003 WL 23162326 (E.D.Pa. Dec. 12, 2003); Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004); Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006); Koc v. Koc, 181 F.Supp.2d 136 (E.D.N.Y. 2001); Lopez v. Alcala, 547 F.Supp.2d 1255 (M.D.Fla. 2008); Mendoza v. Miranda, 525 F.Supp.2d 1182 (C.D.Ca. 2007); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Roberts v. United States Jaycees, 82 L.Ed.2d 462 (1984); Rodriguez v. Rodriguez, 33 F.Supp.2d 456 (D.Md. 1999); Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007); Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045 (E.D.Wash. 2001); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005); Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000); Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004).

INCADAT comment

Aims & Scope of the Convention

Removal & Retention
Commencement of Removal / Retention
Habitual Residence
Habitual Residence

SUMMARY

Summary available in EN | FR

Facts

The application related to children born in 2002 and 2004 to a Cypriot father and a Russian mother. The parents were married in Cyprus in 2000 and lived there together until November 2007 when the family went to the United States of America on what was intended to be an eight week vacation.

The marriage was characterised by the father's physical and emotional abuse of the mother, his heavy drinking and drug use. He had never physically harmed the children but had threatened to take them away from their mother. On 23 November 2007 the whole family went to the United States of America to visit the extended family. The father was due to return to Cyprus in January 2008, the mother and children the following month.

While staying with the mother's parents, the father was drunk and abusive. The mother reported him to the police and obtained a temporary restraining order on 10 December 2007. The mother never returned with the children as planned and had since resided with her parents in Philadelphia. The father returned to Cyprus. On 14 November 2008 he applied for the return of the children from the United States of America.

Ruling

Application denied and return refused; although the retention was wrongful, Article 13(1)(b) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Grounds

Habitual Residence - Art. 3

Prior to their wrongful retention in the United States of America, the children were habitually resident in Cyprus. The United States District Court, Eastern Division Pennsylvania rejected the mother's contention that they had acclimatised to the United States of America.

The children were born in Cyprus and had lived there all their lives. They attended school there and saw their father's family. The parents had never agreed that the children should move to the United States of America permanently. The father believed the mother and children would return to Cyprus; return tickets had been purchased, most of the children's belongings were there, and they had been enrolled in school for the following year.

The children's lives had been unsettled since arriving in the United States of America. At times they had stayed with the maternal grandparents and it was unclear whether the mother had her own residence. She did not have employment. Therefore the children did not have "a routine or a sense of environmental normalcy in the United States of America at the time of the wrong retention."

Removal and Retention - Arts 3 and 12
The retention of the children in the United States of America was wrongful from 10 December 2007, the date that the father received notice of a temporary restraining order. From this date he knew, or should have known, that the mother was not returning to Cyprus with the children.

Rights of Custody - Art. 3

The father had established that he was exercising his custody rights at the time of the wrongful retention by being involved in the daily lives of the children in Cyprus and providing them with financial support.

Removal and Retention - Arts 3 and 12

-

Rights of Custody - Art. 3

-

Grave Risk - Art. 13(1)(b)


Returning the children to Cyprus exposed them to a grave risk of physical or psychological harm. The Court found that the father's abuse of the mother, the inability of the Cypriot authorities to protect her, and the daughter's resulting psychological disorder established the grave risk defence.

The father subjected the mother to physical and emotional abuse. He beat her repeatedly and on one occasion had broken her nose. He also drank heavily and shouted at the mother and children. He had threatened to kill her. The mother feared the local Cypriot police and did not believe that they would protect her from the father's abuse. On one occasion she had reported him to the police but he had forced her to withdraw the complaint.

The evidence of a licensed psychologist established that the daughter suffered from chronic post traumatic stress disorder resulting from witnessing her mother's abuse.

The witness advised that returning her to Cyprus was likely to cause severe psychological and emotional duress. Returning the son to Cyprus would also expose him to a grave risk of physical or psychological harm due to the father's inability to control his temper and his domestic abuse. Separating him from his mother and sister was also likely to cause harm.

Authors of the summary: Jamie Yule and Peter McEleavy

INCADAT comment

Commencement of Removal / Retention

Primarily this will be a factual question for the court seised of the return petition. The issue may be of relevance where there is doubt as to whether the 12 month time limit referred to in Article 12(1) has elapsed, or indeed if there is uncertainty as to whether the alleged wrongful act has occurred before or after the entry into force of the Convention between the child's State of habitual residence and the State of refuge.

International Dimension

A legal issue which has arisen and been settled with little controversy in several States, is that as the Convention is only concerned with international protection for children from removal or retention and not with removal or retention within the State of their habitual residence, the removal or retention in question must of necessity be from the jurisdiction of the courts of the State of the child's habitual residence and not simply from the care of holder of custody rights.

Australia
Murray v. Director, Family Services (1993) FLC 92-416, [INCADAT cite: HC/E/AU 113]. 

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567, [INCADAT cite: HC/E/AU 232];  Kay J. confirmed that time did not run, for the purposes of Art. 12, from the moment the child arrived in the State of refuge.

State Central Authority v. C.R. [2005] Fam CA 1050, [INCADAT cite: HC/E/AU 232];  Kay J. held that the precise determination of time had to be calculated in accordance with local time at the place where the wrongful removal had occurred.

United Kingdom - England & Wales
Re H.; Re S. (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 All ER 230, [1991] 2 FLR 262, [INCADAT cite: HC/E/UKe 115].

United Kingdom - Scotland
Findlay v. Findlay 1994 SLT 709, [INCADAT cite: HC/E/UKs 184].

However in a very early Convention case Kilgour v. Kilgour 1987 SC 55, 1987 SLT 568, 1987 SCLR 344, [INCADAT cite: HC/E/UKs 116], the parties were at one in proceeding on the basis that the relevant removal for the purposes of the Convention was a removal in breach of custody rights rather than a removal from the country where the child previously lived. 

Agreement on the issue of the commencement of return was not reached in the Israeli case Family Application 000111/07 Ploni v. Almonit, [INCADAT cite:  HC/E/IL 938].  One judge accepted that the relevant date was the date of removal from the State of habitual residence, whilst the other who reached a view held that it was the date of arrival in Israel. 

Communication of Intention Not to Return a Child

Different positions have been adopted as to whether a retention will commence from the moment a person decides not to return a child, or whether the retention only commences from when the other custody holder learns of the intention not to return or that intention is specifically communicated.

United Kingdom - England & Wales
In Re S. (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, [INCADAT cite: HC/E/UKe 117], the English High Court was prepared to accept that an uncommunicated decision by the abductor was of itself capable of constituting an act of wrongful retention.

Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682, [INCADAT cite: HC/E/UKe 50]: the moment the mother unilaterally decided not to return the child was not the point in time at which the retention became wrongful. This was no more than an uncommunicated intention to retain the child in the future from which the mother could still have resiled.  The retention could have originated from the date of the aunt's ex parte application for residence and prohibited steps orders.

United States of America
Slagenweit v. Slagenweit, 841 F. Supp. 264 (N.D. Iowa 1993), [INCADAT cite: HC/E/USf 143].

The wrongful retention did not begin to run until the mother clearly communicated her desire to regain custody and asserted her parental right to have the child live with her.

Zuker v. Andrews, 2 F. Supp. 2d 134 (D. Mass. 1998) [INCADAT cite: HC/E/UKf 122], the United States District Court for the District of Massachusetts held that a retention occurs when, on an objective assessment, a dispossessed custodian learns that the child is not to be returned.

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].

The Court of Appeals held that ultimately it was not required to decide whether a child was not retained under the Convention until a parent unequivocally communicated his or her desire to regain custody, but it assumed that this standard applied.

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.