VITALIANO, District Judge.
Petitioner Felicia Haimdas, a British citizen, petitions this Court for the return of her two sons to England pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) ("Hague Convention" or "Convention"), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (2009) ("ICARA"). The boys—S.H., age 10, and A.H., age 12
The petition was filed on May 13, 2009. On February 23, 24 and 25 and March 2, 2010, the Court conducted a bench trial. As authorized by Rule 43(a) of the Federal Rules of Civil Procedure, petitioner, who had been unable to obtain a visa to travel to this country, testified via a live video link from London, England. Respondent and Dr. Glen D. Skoler, a psychologist retailed by petitioner as an expert witness, testified in open court. The Court interviewed the children in camera on the record but outside the presence of the parties and their respective counsel.
For the reasons set forth in this Memorandum and Order, which constitutes the Court's findings of fact and conclusions of law oursuant to Rule 52 of the Federal Rules of Civil Procedure, the petition is granted.
Petitioner and respondent became romantically involved in 1996, when petitioner was 18 years old and respondent was 28 years old. Petitioner's sister and respondent's brother had married in late 1994
When petitioner returned to England, her mother learned of the pregnancy and told her father, who was not pleased. Petitioner's father spoke to respondent's mother, and together they urged petitioner and respondent to marry. Despite some misgivings on the part of petitioner, petitioner and respondent were married at a ceremony in London on December 21, 1996. (Tr. 19:21-20:22). Within two weeks of their wedding, on January 24, 1997, petitioner and respondent came to the United States together and moved into their extended family's house in Queens, although petitioner had only a tourist visa. (Tr. 20:23-21:7, 28:4-16).
In June 1997, the first of their two sons, A.H., was born in the United States. As the child of a citizen of the United Kingdom, A.H. became a dual citizen of both countries upon his birth, and retains that status today. (JPTO § VI at ¶¶ 7, 9).
Petitioner testified that, not long after their first child was born in the summer of 1997, petitioner and respondent's marriage hit the rocks. (Tr. 23:6-24:4). The relationship deteriorated further after the arrival of their second child in the spring of 2001. In September 2001, petitioner decided, with respondent's blessing, to take the children to England by herself and raise them there indefinitely. At the time, A.H. was four years old and S.H. was approximately 17 months old. Petitioner took as many belongings as she could fit into five suitcases, and flew to England with the boys on one-way tickets purchased by respondent. Upon arrival, they moved in with petitioner's mother in Croydon, an outer borough of London. (Tr. 24:5-25:1; JPTO § VI at ¶ 10). A.H. started nursery school in England in October 2001, while S.H., still an infant, stayed home with his mother. (Tr. 25:2-25:24). They lived in England without interruption for the next seven months.
On April 12, 2002, petitioner and the children flew to New York for what petitioner intended to be a two-week visit, accompanied by petitioner's brother (the boys' uncle). They traveled on round-trip tickets, again purchased by respondent. The purpose of the visit was to see if it was possible for petitioner and respondent to reconcile and save their marriage. (Tr. 26:1-27:25). Upon landing at John F. Kennedy International Airport in Queens, petitioner was denied entry into the United
Before petitioner flew back to England, she had an opportunity to speak to respondent for a few minutes at the airport, and told him "to send the children home after two weeks with [her] brother." (Tr. 29:6-14). Notwithstanding the conversation, when the time came to use the round-trip tickets he had purchased for them, respondent refused to send the children back as scheduled. (Tr. 29:23-30:17). For the next three years, over petitioner's objections and entreaties, the boys lived with respondent in New York. (Tr. 29:24-32:21).
Although he refused to allow their children to go back to England and live with petitioner during this period, respondent did not wholly block her from seeing them, with certain conditions and limitations. At Christmas 2002, respondent escorted the boys on a short trip to England, and during the summers of 2003 and 2004, the boys came to England unaccompanied by respondent for four to six-week visits. Respondent insisted that the boys sleep at the home of petitioner's father (then the father-in-law of both respondent and respondent's brother) rather than stay with petitioner, but otherwise did not impede her access to them. (Tr. 31:7-25; JPTO § VI at ¶¶ 12, 13).
In the summer of 2005, A.H. and S.H., then eight and five years old, respectively, returned to England and remained there for the next three years. During this period, they lived with petitioner in an apartment close to her mother's home in Croydon and attended British schools. Petitioner took care of the children's overall well-being, providing them with clothes, food, shelter, medical and other living expenses and overseeing their education. (Tr. 35:6-22; JPTO § VI at ¶¶ 14-17). The facts surrounding this turn of events are the subject of some dispute.
According to petitioner, during their summer 2005 visit, the boys told petitioner that they wanted to live with her and did not want to return to the United States because their father had been hitting or punishing them. (Tr. 32:17-33:1). Petitioner called respondent and proposed that the boys stay with her, and respondent agreed. Shortly thereafter, respondent flew to England and confirmed his agreement with petitioner in person. He also gave petitioner the boys' passports and birth certificates so that she could enroll them in school, and purchased their British school uniforms. (Tr. 33:2-15). Petitioner stated that respondent never said anything about if or when the children would have to return to New York. However, petitioner admitted that in some heated discussions or phone conversations, "he may have said that [she] kidnapped them." (Tr. 34:7-15).
Respondent initially testified at trial that he had not agreed that the boys could stay in England in July 2005, and that petitioner had never asked him to consent to that. (Tr. 103:10-104:7). He then testified that petitioner had asked him if she could keep the younger child for a period of two years so that she could form a stronger "bond" with him. (Tr. 104:22-105:10). At that point, petitioner's counsel confronted respondent with a portion of his deposition transcript reflecting that respondent
Even crediting respondent's vague and inconsistent testimony that, in July 2005, he only gave his permission for the children to live in England for a finite period not to exceed two years, he plainly had a change of heart before the agreement ran its course. Respondent traveled to England in April 2006, around the time of S.H.'s birthday. When he arrived, petitioner and the boys were out of the country, spending Easter vacation in Barbados. According to petitioner, respondent did not tell her beforehand that he was coming, and she only found out when her parents called her in Barbados to warn her. (Tr. 44:22-45:10). Respondent testified that he went to England to celebrate S.H.'s birthday and to see both children because he missed them, and that petitioner did know he was coming. (Tr. 102:21-24, 112:18-113:22).
According to petitioner, upon returning to England, she spoke to respondent (who was staying at her father's house) on the phone, and respondent threatened to "kidnap" the children. (Tr. 45:17-22). Petitioner, who had recently begun the process of divorcing respondent, contacted her matrimonial lawyer, who suggested that she go to her local court and apply for a "prohibited steps order." Petitioner understood this to be an order for respondent "not to be able to take the children outside the UK." (Tr. 46:1-10). She followed counsel's advice and successfully applied for an ex parte order from the Croydon County Court on April 12, 2006, captioned "Interim Prohibited Steps Order, Section 8 Children Act 1989" ("Prohibited Steps Order"). It provided, in relevant part:
(PTX 25). The proceeding was adjourned for one week, to April 19, 2006, and the time for service of the order was abridged to 24 hours. (Id.).
Respondent received the Prohibited Steps Order in the mail at petitioner's father's home, where he was staying while in England. (Tr. 102:17-24). Respondent testified at trial that he never actually read the Prohibited Steps Order and was unaware of its contents. (Tr. 131:13-24). Notwithstanding, both petitioner and respondent duly appeared before the Croydon County Court on the return date. (Tr. 102:17-24). Petitioner was represented
At the conclusion of the April 19, 2006 hearing, the judge issued an order titled "Contact Order, Section 8 Children Act 1989" ("Contact Order"), providing in relevant part:
(PTX 26). The Prohibited Steps Order and the Contact Order were printed on the same standardized form, which included a bold-faced warning at the foot of the first page stating: "It may be a criminal offence under the Child Abduction Act 1984 to remove the children from the United Kingdom without the leave of the court." Additionally, the form included a warning regarding certain restrictions on removal of children from the United Kingdom that apply "[w]here a residence Order is in force." (PTX 25, 26). However, as discussed further below, prohibited steps, contact and residence orders are three distinct and discretely defined types of orders
On April 19 and 20, 2006, respondent visited with the children as authorized by the Contact Order. He returned to the United States without further incident shortly thereafter. Approximately two months later, petitioner and respondent's divorce was finalized. (PTX 37).
The children next saw respondent in August 2006, when, with petitioner's consent, they flew to New York on round-trip tickets purchased by respondent, stayed with him for about a month, and then arrived back in London as scheduled. (Tr. 52:23-53:8). A few months later, petitioner permitted them to return to New York for a two-week visit over Christmas, for which respondent also purchased roundtrip tickets. This time, respondent unilaterally decided to extend the boys' trip for a few days and pushed back their return flight reservations without consulting petitioner, but after that brief delay, he put them on a plane back to England once again. (Tr. 53:9-54:4). The following Christmas, petitioner consented to another two-week visit, which ended on time. (Tr. 54:8-19).
On July 25, 2008, with petitioner's consent, the boys again flew to New York to see respondent. They came on round-trip tickets. As usual, respondent had purchased them. The return flight was scheduled to depart New York on August 25, 2008, and land in London the following morning. (PTX 57). According to petitioner, on or around August 20, 2008, respondent called petitioner and informed her that the boys would not be returning to England because "it was his turn to have them," then hung up when petitioner protested. (Tr. 56:17-57:17, 62:2-5). A few hours later, the children spoke to petitioner on respondent's cell phone and told her that they wanted to stay in the United States and were unwilling to return to England; in petitioner's opinion, "[y]ou could tell in their voices that they were prompted in what to say." (Tr. 57:25-58:9). Respondent testified that the boys had resisted going back to England and had asked respondent to allow them to stay and live with him instead, and that respondent initially told them to ask their mother for her permission and then called her himself. Respondent further testified that he contacted petitioner because he believed it was the right thing to do under the circumstances, not because he thought he had a legal obligation to obtain petitioner's consent to retain the children in the United States. (Tr. 124:11-125:24).
After respondent told her that he intended to keep the boys in the United States, petitioner promptly consulted her matrimonial counsel, who advised her to sit tight until they actually failed to return as scheduled. Petitioner testified that, on August 25, 2008, she spoke to the children on the telephone and they told her that they were packed, showered and waiting to be taken to the airport for their flight back to London. Later that day, however, petitioner called back and learned that the children were still in New York. (Tr. 59:12-25). Once petitioner could be certain that the children had indeed missed their return flight, she called her attorney again, who advised her to commence legal action against respondent pursuant to the Hague Convention. (Tr. 59:2-4, 62:10-13).
Since July 2008, when A.H. and S.H. were, respectively, 11 and eight years old, petitioner has not seen either child in person and has had only limited contact with them by email and phone. At the time of trial, the children had been living in the United States with respondent for approximately 17 months.
The Court interviewed A.H. and S.H. separately in camera. A.H., then in seventh grade and a few months shy of his 13th birthday, is clearly a thoughtful, intelligent, articulate, polite and good-natured child. At the beginning of the interview, A.H. indicated that he understood the importance of telling the the whole truth, and told the Court that he would do so. The Court finds that his statements were credible and that he made an effort to respond to questions openly and honestly. That said, A.H. frequently struggled to recall specific details about the past, and seemed hesitant or uncertain about many answers.
A.H. echoed respondent's testimony that he and his younger brother had lived in England after 2005 so that they (and his brother in particular) could "bond" with petitioner, and that the plan was not for them to remain there permanently. However, he also acknowledged that the stay in England was not a vacation and was intended to go on for more than a short period of time, although he could not say what the intended length was. (Tr. 363:21-364:12). On the whole, A.H. had generally good memories of attending school in England, although he remembered having more homework and finding school to be more demanding there. He indicated that he made many friends in England with whom he would have liked to stay in touch, but currently has no way to reach.
As might be expected given his physical separation from his mother, A.H. is currently distanced from her in an emotional sense as well. He had trouble recalling the last time he saw her, although it was less than two years before, and remarked somewhat offhandedly that he "never really had a close relationship with [his] mother." (Tr. 346:17-347:5, 358:7-8). He also professed not to know how she feels about the fact that he and his brother have stayed in New York with respondent since the summer of 2008, although he perceives that this proceeding is related to the fact that his mother "is fighting for custody or something like that, for us to go back to England." (Tr. 320:6-7, 351:24-352:2, 364:21-365:2).
A.H. maintained that he does not want to return to England, and prefers to live in the United States. When the Court initially asked A.H. to explain why, he offered several disjointed reasons in rapid succession, some rational and some less so: (1) his mother sometimes hits him and his
Ultimately, however, A.H. explained that his paramount reason for objecting to return was none of the above; rather, it was his desire not to be separated from his little brother. A.H. acknowledged that he did not start thinking in earnest about asking to stay in New York until after he and S.H. arrived here in July 2008. According to A.H., at some point during the visit, the boys talked about where they would rather live and "[S.H. said] I want to stay over here in New York. I don't want to be split from my brother. I said that's what I think too. That is what I thought too." (Tr. 354:2-5). A.H. readily acknowledged that staying together with his brother is his most important concern, no matter where they end up. Aside from that, A.H. actually indicated that he would prefer not to shoulder the burden of making a choice about where to live: "I don't put too much thought into it. I thought like, okay, it's something big, but it's not really my business now until it comes to me, if it ever comes to me." (Tr. 357:25-358:1).
Next came the interview of S.H., in fourth grade and nine and a half years old at the time of the hearing, who was as bright and generally delightful as his older brother. S.H. said that he enjoys attending school in the United States, has made friends here and, in particular, was excited about working on a project for an upcoming science fair. The Court established at the outset of the interview that S.H. understood the difference between telling the truth and not telling the truth and thereafter ascertained his credible promise to respond to the Court's questions truthfully and completely. S.H. also stated that he had not been told what to say by respondent or anyone else, and the Court found (as with A.H.) no indication that S.H. had been directly coached by any adult about what to say.
Commensurate with his younger age, S.H.'s stream of statements was more jumbled than A.H.'s, and he made more fanciful and unrealistic comments. For example, in contrast with his brother's assessment, S.H. stated that he "had more education" in New York. When asked to elaborate, he stated that the only two subjects taught in school in England are writing
Like his brother, S.H. described the children's move to England in 2005 as "a deal" made by their parents "because [their] mom wanted to get more bonding time with" him, and believed that they were expected to live in the United States again someday but did not know when. (Tr. 375:18-22, 381:14-15). He also had only hazy recollections of last seeing petitioner, and had trouble remembering whether and when he had spoken to her since arriving in New York in summer 2008. (Tr. 390:22-392:16). Nonetheless, S.H. painted an even more Dickensian portrait of what, in his memory, life was like with his mother in England. S.H. flatly stated in sweeping terms that his mother "used to hit me with a belt . . . . [t]he metal part, and with slippers. She used to leave us in cars. She left me in the car for six hours." (Tr. 381:17-382:6).
Again like his brother, S.H. indicated that he expected to return to England when he came to New York in summer 2008, but decided after arriving that he wanted to continue living here rather than move back to England, for a similar panoply of stated reasons. He confirmed that he and A.H. had talked about where they wanted to live and described the decision as a joint one: "We made it like when it was summer, like we enjoyed the time there. We said we wanted to stay with dad in New York . . . that's when we made our decision." (Tr. 388:5-8). Unlike A.H., however, S.H. insisted that his objection to return was not contingent on his brother's concurrence, and that he would want to stay here even if A.H. were to return to England. (Tr. 394:11-22). He also openly professed to be on his father's "side" in this case, without the ambivalence that A.H. had displayed, explaining: "He treats us more better than our mom did. He buys us like things we want, but we don't waste his money. Our mom, she didn't really buy us anything." (Tr. 395:7-13). When pressed, S.H. acknowledged that money is not always the most important thing, but added: "He took care of us. My mom used to leave us home by ourselves." (Tr. 395:14-16).
At the hearing, Dr. Skoler was qualified as an expert in clinical and forensic psychology and his report, dated October 5, 2009, was received into evidence without objection.
As reflected in his report and its exhibits, Dr. Skoler administered several standardized psychological tests to both A.H. and S.H.: the Millon Pre-Adolescent Clinical Inventory ("MPACI"); the Children's Depression Inventory ("CDI"); the Personality Inventory for Youth ("PIY"); and the Wechsler Abbreviated Scale of Intelligence ("WASI"). The only one of these tests that Dr. Skoler deemed to have yielded valid results, however, was the WASI, from which he concluded that the IQs of both boys fall into the "above average" range. (PTX 11 at 23). He found their M-PACI scores to be "of questionable validity" because their answers seemed "overly guarded" about their true feelings. (Id. at 18-20). Similarly, Dr. Skoler stated in his report that "[b]oth of the children did not appear to be forthrightly reporting the extent of their feelings on the CDI" (id. at 18), and that their PIY answers were invalid because of their "defensiveness." (Id. at 21). Dr. Skoler also administered selected portions of the Roberts Apperception Test for Children ("RATC") to S.H., based on which Dr. Skoler opined that S.H.'s "unconscious feelings about his mother[ ] were sad and poignant, compared to his guardedness" on the PACI, CDI and PIY. (Id. at 22). Dr. Skoler stated that he "chose not to give the" RATC to the older child at all, "since he was so clearly somehow psychologically warned about this evaluation, and would likely have seen through the purpose of the test." (Id.).
The Hague Convention "was adopted in 1980 in response to the problem of international child abductions during domestic disputes." Abbott v. Abbott, ___ U.S. ___, 130 S.Ct. 1983, 1989, 176 L.Ed.2d 789 (2010). The Convention's express objectives are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1. Since its inception, the treaty has been ratified by over 80 nations, including, most pertinently, the Unites States and the United Kingdom.
The Convention is especially designed to deter "those close to [a child], such as parents, guardians, or family members," from unilaterally taking or keeping the child out of the country of habitual residence with an intent "to establish artificial jurisdictional links" to a more sympathetic forum for a custody dispute. Gitter v. Gitter, 396 F.3d 124, 129-30 (2d Cir. 2005) (internal quotation marks omitted). Accordingly, "[t]he Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must `order the return of the child forthwith,' unless certain exceptions apply." Abbott, 130 S.Ct. at 1989 (quoting Hague Convention, art. 12). "[A] `wrongful removal' under the Convention is one `in breach of rights of custody ... under the law of the State in which the child was habitually resident.'" Blondin v. Dubois, 238 F.3d 153, 157 (2d Cir.2001) ("Blondin II") (quoting Hague Convention, art. 3) (ellipsis in Blondin II). The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art 5.
"The Convention and [ICARA] empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." 42 U.S.C. § 11601(b)(4). Consequently, a court considering a Hague Convention petition has jurisdiction only over the wrongful removal or retention claim, and "must resist the temptation to engage in a custody determination under the traditional `best interests' test." Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 403 (E.D.N.Y.2005); see Hazbun Escaf v. Rodriquez, 200 F.Supp.2d 603, 610-11 (E.D.Va.2002) ("[T]he focus of a court's inquiry in a Hague Convention case is not `the best interests of the child,' as it typically is in a state custody case; rather it is the specific claims and defenses under the Convention."). "A return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence." Abbott, 130 S.Ct. at 1989.
"[I]n order to prevail on a claim under the Hague Convention, a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." Gitter, 396 F.3d at 130-31. "The petitioner must establish these requirements by a preponderance of the evidence." Id. at 131 (citing 42 U.S.C. § 11603(e)(1)(A)).
The Hague Convention's protection against child abduction may be invoked only when the subject child has been taken or kept out of "the State in which the child was habitually resident immediately before the removal or retention." Hague Convention, art. 3(a). Yet, despite the integrality of the term, there is no definition of "habitually resident" provided in the Convention itself. See Gitter, 396 F.3d at 131; Elisa Perez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, Acts and Documents of the 14th Session, vol. III 441, ¶ 53 (1982) ("Perez-Vera Report") ("Following a long-established tradition of the Hague Conference, the Convention avoided defining its terms.").
"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." Id. at 134. "This question can in turn be broken down into two components: whether the parents formed a shared, settled intention to abandon the child's previous habitual residence, and whether the parents have mutually intended that the child acquire a new habitual residence in a new location." Poliero v. Centenaro, 373 Fed.Appx. 102, 104 (2d Cir. 2010) (internal quotation marks omitted) (citing Gitter, 396 F.3d at 132-33; Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir.2010) ("The settled purpose of a family's move to a new country is a central element of the habitual residence inquiry. . . . [T]he family must have a sufficient degree of continuity to be properly described as settled.") (internal quotation marks omitted)). Shared intent must be manifested by "actions as well as declarations." Gitter, 396 F.3d at 134. Thus, if the last shared intent of the parents was to abandon a child's habitual residence, the mutually intended move must actually have taken place. See id. at 133 ("[A] change in geography is a necessary condition to a child acquiring a new habitual residence."); accord Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir.2004) ("Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence. In addition, there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.").
While "[n]ormally the shared intent of the parents should control the habitual residence of the child," the second step of the Gitter inquiry requires a court also to consider "whether the evidence unequivocally points to the conclusion that the child has acclimatized to the 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 Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147 (2d Cir.2008). The exception does not swallow the rule; in keeping with the Convention's goal of discouraging "parents and guardians from engaging in gamesmanship with a child's upbringing," Gitter, 396 F.3d at 134, the Second Circuit has warned that a court "should be slow to infer that the child's acclimatization trumps the parents' shared intent," id. (internal quotation marks omitted), and that "[t]his is a difficult test to satisfy." Poliero, 373 Fed. Appx. at 105. The presumption favoring the habitual residence last intended by both parents may only be overcome in those "relatively rare circumstances" where it appears "possible that the child's acclimatization to the location abroad [is] so complete that serious harm to the child can be expected to result from compelling his return to the family's intended residence." Gitter, 396 F.3d at 134.
In this case, petitioner contends that the subject children are habitual residents of England, while respondent has asserted that the "[t]he children were habitually
During the period between January 1997 and September 2001, petitioner and respondent lived together as husband and wife in New York, and petitioner bore their two sons here. Though born on American soil, both children were at birth, and still are today, dual citizens of England and the United States. Petitioner testified undisputedly at trial that, in September 2001, she gathered essentially all of her worldly possessions and moved to England with both children in tow, intending to raise them there indefinitely as a single parent. Petitioner further testified that: (1) she decided to move after respondent kicked her and the children out of their home in Queens; (2) respondent bought one-way tickets to London for the three of them; (3) in fall 2001, petitioner enrolled the school-age older child in nursery school in England; and (4) petitioner lived with both children in England for the next seven months. These uncontroverted facts illustrate that, in September 2001, petitioner and respondent mutually intended both children to abandon life in the United States and acquire a new habitual residence in England, the agreed-upon geographical change actually occurred and the children subsequently stayed in England long enough to become acclimatized. See generally Peter R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 112 (P.B. Carter QC ed., Oxford University Press 1999) ("[I]n the case of children, six months should be treated as a guideline figure when considering the length of time necessary before residence might be classified as habitual."). Thus, the Court finds that A.H. and S.H. were habitual residents of England as of April 12, 2002, when petitioner flew to the United States with both children for a short visit and, in a peculiarly unpleasant incident, was separated from them against her will by border officials at the airport and forced to fly back to England alone.
Respondent received the children at the airport in New York that day and refused to consent to their return to petitioner's care in England for the following three years. During this time, the Court finds no credible support for the conclusion that petitioner and respondent agreed that the boys' habitual residence should revert to the United States; rather, petitioner periodically reminded respondent that she believed it best for the children to live with her in England. Further, the Court finds no evidence in the record "unequivocally point[ing] to the conclusion" that either child became so utterly acclimatized to the United States between 2002 and 2005 that his habitual residence shifted regardless of the lack of parental consensus. Gitter, 396 F.3d at 134. Quite to the contrary, by all accounts, both boys subsequently proved capable of readjusting to life overseas with petitioner without serious incident. Accordingly, throughout this prolonged stay in the United States, A.H. and S.H. remained "habitual residents" of England for Hague Convention purposes.
Even assuming arguendo that the children's habitual residence did shift back to the United States after April 2002, any such change was mooted by subsequent events. In July 2005, while the boys were staying in England during summer vacation, petitioner and respondent spoke on the telephone and once again mutually decided that the boys would remain and live in England with petitioner for the foreseeable future. Respondent testified, and petitioner did not dispute, that he agreed
Even though the children are now living in the United States with respondent, and have been since late summer 2008, respondent unreservedly acknowledges that petitioner never consented or acquiesced to this arrangement. (JPTO § VI at ¶ 18). Further, there is again no evidence that, since leaving England in July 2008, either child has become so acclimatized to the United States that compelling return to England "can be expected" to result in "serious harm to the child," Gitter, 396 F.3d at 134, or would "be tantamount to taking the child out of the family and social environment in which [his] life has developed." Daunis v. Daunis, 222 Fed.Appx. 32, 34 (2d Cir.2007) (internal citations omitted). While the children appear to be comfortable and stable in New York and have been enjoying attending school and living with their father and other family members here for nearly two years, the boys are also well-acquainted with grandparents, cousins and other extended family members who live in England. They have, of course, also attended school for significant stretches in that country. Based on the in camera interviews of the boys, it is readily apparent to the Court that, having periodically ricocheted between America and England throughout their lives, they are eminently capable of adjusting (and readjusting) to life on either side of the pond. Ultimately, the Court cannot conclude that, at present, their acclimatization to the United States is sufficient to outweigh their parents' last shared intent. See, e.g., Poliero v. Centenaro, No. 09-cv-2682, 2009 WL 2947193, at *21 (E.D.N.Y. Sept. 11, 2009), aff'd, 373 Fed.Appx. 102 (2d Cir.2010) (finding that "while the children have adjusted well to their new lives in New York and have been successful in pursuing their school work and other activities, the Court is hard pressed to find that
In sum, the Court finds that the most recent point in time where petitioner and respondent mutually agreed upon their children's habitual residence was in the summer of 2005, when they both agreed to reaffirm England as that geographic location. That decision was totally in harmony with the prior formed and executed shared intent in September 2001, when the marriage fell apart and petitioner and the children moved to England with respondent's cooperation. Alternatively, if a new habitual residence intervened after September 2001, shared parental intent and physical change in geographic location reverted the boys' habitual residence to the United Kingdom in the summer of 2005. Either way, the extant parental consensus was for A.H. and S.H. to be habitual residents of England, and the children's lives now are not so deeply entrenched in the United States as to warrant disregarding the locus of their Hague Convention habitual residence. Accordingly, petitioner has met her burden of showing that S.H. and A.H. were habitual residents of England immediately before respondent's retention of them in the Eastern District of New York in 2008.
The Court next considers whether respondent's August 2008 retention of the children in the United States breached petitioner's "rights of custody" under English law, i.e., her "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, arts. 3, 5; see Gitter, 396 F.3d at 130-31. Under the express terms of the Convention, "rights of custody" may arise from on any one or more of the following: "operation of law"; "a judicial or administrative decision"; or "an agreement having legal effect under the law of the child's habitual residence. Hague Convention, art. 3. To this end, the Convention permits a court to "take notice directly of the law of . . . the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law." Id., art. 14.
Petitioner asserts that she has "rights of custody" by "operation of English law— specifically, the United Kingdom Children Act of 1989 (the "Children Act"), the statute which establishes "all the law relating to the care and upbringing of children" in that country. N.V. Lowe, The Allocation of Parental Rights and Responsibilities— the Position in England and Wales, 39 Fam. L.Q. 267, 267 (2005) (internal quotation marks omitted). Although the Children Act does not employ the word "custody" as a legal term of art,
Quite the opposite obtains here. In this case, English court orders were issued to protect petitioner's ability to exercise her rights to "care" for the children. The Prohibited Steps Order prohibited respondent from "removing the children from the care of [petitioner] or from the care of any person to whom she has entrusted such care" without her consent, and required respondent to "return the children to the [petitioner] promptly at the expiry of any agreed contact" (PTX 25); the succeeding Contact Order specifically provided for the continuation of these provisions. (PTX 26). Respondent's sustained refusal to return his sons to petitioner's care following August 25, 2008, the scheduled end date of the short visit for which petitioner had agreed to release them, plainly violates these specific judicial directives. Indeed, petitioner testified without contradiction that she has reminded respondent that the Contact Order is in effect, and he has told her that he simply does not care. More broadly, respondent's unilateral retention is at odds with the Children Act's conferral of "parental responsibility" on both parents. As a consequence, the Court finds that respondent's actions are "in breach of rights of custody attributed to [petitioner] under the law of the State in which the child[ren] [were] habitually resident immediately before the . . . retention," namely, the United Kingdom. Hague Convention, art. 3(a).
Petitioner testified that she sought and obtained the Prohibited Steps Order in 2006 specifically because she wanted to prevent respondent from taking or keeping the boys out of England without her consent. In addition to its bold-faced warning that "[i]t may be a criminal offense under the Child Abduction Act 1984 to remove the children from the United Kingdom without the leave of the Court," the Prohibited Steps Order stated, in its first provision, that "[u]ntil further order, [petitioner] and respondent are prohibited from removing the children from England and Wales." (PTX 25). This provision was continued by the Contact Order, which also contains a stipulation permitting "contact as may be agreed by the parties." (PTX 26). Thus, petitioner also holds a ne exeat right pursuant to both operation of English law and specific court order. Since August 25, 2008, respondent has breached this "right of custody" by retaining the children outside of England both without petitioner's consent and without ever seeking or obtaining authorization from the appropriate English court.
The third and final element of the prima facie case that petitioner must establish is that, at the time of the boys' retention in the United States by respondent, she was actually exercising her "rights of custody," or would have been exercising such rights but for the retention. See Hague Convention, art. 3(b).
Prior to trial, the parties stipulated that: "[d]uring the time when the Children lived with Petitioner in England, Petitioner took care of their overall well-being, providing them with clothes, food, shelter, medical and other living expenses." (JPTO § IV at ¶ 15). This was borne out by petitioner's testimony. (Tr. 35:6-22). Since July 25, 2008, A.H. and S.H. have been situated an ocean away from petitioner in the United States, a country that she is legally barred from entering; petitioner obviously has not been taking "care of their overall wellbeing"
In sum, petitioner has satisfied her burden, of establishing a prima facie case of wrongful retention under the Convention.
"Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies." 42 U.S.C. § 11601(a)(4). Respondent's defense to petitioner's prima facie case for return is premised exclusively on an unnumbered sentence in article 13 of the Convention often dubbed the "age and maturity defense" or the "mature child exception," which provides that a court "may . . . 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."
The fact that a sufficiently mature child objects to repatriation "may be conclusive"; in other words, a district court can decline to order return of a wrongfully retained or removed, child on that ground alone. Blondin II, 238 F.3d at 166. However, it bears emphasis that the Convention merely calls for a court to "take account of" a mature child's objection to return, not to accede to it automatically. Further, a court always retains discretion to order repatriation notwithstanding the applicability of any Hague Convention exception if that would best fulfill the purposes of the Convention; the discretionary aspect is particularly important with respect to the mature child exception "because of the potential for undue influence by the person who allegedly wrongfully retained the child." Hazbun Escaf, 200 F.Supp.2d at 615. Such undue influence is not always calculated or intended by the custodial parent. "A lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home." Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 280 (3rd Cir.2007) (finding that "[e]ven if the record supported a finding that [respondent] met his burden of proving the applicability of the exception to this case, it cannot be said that the District Court abused its discretion
"Whether a child is mature enough to have its views considered is a factual finding" that a district court must make in light of the specific circumstances of each case. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007). "Given the factintensive and idiosyncratic nature of the inquiry, decisions applying the age and maturity exception are understandably disparate." de Silva v. Pitts, 481 F.3d 1279, 1287 (10th Cir.2007) (comparing Anderson v. Acree, 250 F.Supp.2d 876, 883 (S.D.Ohio 2002) (considering views of an eight-yearold child who was composed, calmly and readily answered questions, pointed to New Zealand on a globe, and indicated her understanding of the difference between truth and falsehood and of her obligation to tell the truth) and Raijmakers—Eghaghe v. Haro, 131 F.Supp.2d 953, 957-58 (E.D.Mich.2001) (ordering limited discovery including psychological reports and in camera interview to gather enough information to pursue issue of eight-year-old child's wishes) with Tahan v. Duquette, 259 N.J.Super. 328, 335, 613 A.2d 486, 490 (1992) (holding, without discussion, that the exception "simply does not apply to a nine-year-old child") and England v. England, 234 F.3d 268, 272-73 (5th Cir.2000) (reversing district court that had taken a 13-year-old child's wishes into account where child had learning disabilities, had had four mothers in twelve years, had attention deficit disorder, took Ritalin, and was scared and confused)).
The authors of the Hague Convention chose not to set a minimum age at which a child may be deemed sufficiently mature for a court to consider his objections to repatriation, and the Second Circuit has followed suit. See Blondin II, 238 F.3d at 166 (declining to conclude that "under the Convention, as a matter of law, an eightyear-old is too young for her views to be taken into account . . . . as this would read into the Convention an age limit that its own framers were unwilling to articulate as a general rule") (citing Pérez-Vera Report, supra, at 433, ¶ 30 (stating that, "all efforts to agree on a minimum age . . . failed" and "it seemed best to leave the application of this clause to the discretion of the competent authorities," but "the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.")).
Simply put, there are no established objective criteria or tests for assessing "maturity" in the context of the mature child exception, see Anastacia M. Greene, Seen and Not Heard? Children's Objections Under the Hague Convention on International Child Abduction, 13 U. Miami Int'l & Comp. L.Rev. 105, 132 (2005), although the Second Circuit has observed as a general matter that the standard should be a relatively demanding one. See Blondin II, 238 F.3d at 166 (holding that a court may consider any testimony of a child that is "germane" to a broader analysis of whether a grave risk of harm exists upon repatriation, and noting "it stands to reason that the standard for considering a child's testimony as one part of a broader analysis. . . would not be as strict as the standard
Significantly, courts distinguish between a child's "objection" to return, as referenced in the Hague Convention, "and a child's wishes, as expressed in a custody case . . . . [T]he notion of `objections' . . . is far stronger and more restrictive than that of `wishes' in a custody case." Morrison, 2008 WL 4280030, at *13 (internal quotation marks omitted). A child's expression of a preference to remain in the United States rather than a particularized objection to repatriation may provide a basis for a court to find the mature child exception inapplicable. See, e.g., Falk v. Sinclair, 692 F.Supp.2d 147, 165 (D.Me.2010) ("[The child] made clear to me that, despite her strong negative feelings about her German school and a preference to remain in Maine, she does not object to being returned to Germany. Expression of a preference to remain in the respondent's country `is not enough . . . to disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return.'") (quoting Yang, 499 F.3d at 279); Trudrung v. Trudrung, 686 F.Supp.2d 570, 577-79 (M.D.N.C.2010) (finding 15-year old sufficiently old and mature for his opinion to be considered, but ordering return because he had merely testified that his preference was to remain in the United States while expressing no strong objection to returning to Germany, and because his decision was "likely influenced at least in part by his custodial presence with his mother" and "reflect[ed] the product of limited analysis"); Locicero v. Lurashi, 321 F.Supp.2d 295, 298 (D.P.R.2004) ("The fact that the [13 year-old] child prefers to remain in Puerto Rico, because he has good grades, has friends and enjoys sports activities and outings, is not enough for this Court to disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return."). But see de Silva, 481 F.3d at 1287 (affirming district court decision to apply the age and maturity defense and refuse repatriation where 13-year old had stated that he had made friends in the United States, described his house as "really big" and "a great place" where he has a computer and everything he needs for school and indicated
The Court easily finds that respondent has not proved by a preponderance of the evidence that S.H., who was interviewed in camera approximately two months shy of his tenth birthday, is sufficiently mature for the Court to take his views into account.
The Court was obviously concerned by S.H.'s sweeping statements regarding the mistreatment of the children by their mother. However, S.H. is the only witness in this case who has made such extreme allegations. The older child talked about a few specific instances when his mother had hit them or left them alone for a short period of time, but he did not describe an ongoing pattern or practice. Further, respondent has never claimed that petitioner physically abused the children, and has not asserted that the "grave risk of harm" exception to the Hague Convention should apply to prevent repatriation. While the Court does not find that S.H. was intentionally untruthful, the only reasonable conclusion for the Court to draw is that some of S.H.'s experiences as a young child are distorted and inflated in his memory. This is borne out by the fact that S.H. made other statements about his mother's behavior that he could not possibly have known first-hand, e.g., that she never spent any money on S.H. or his brother.
It is, to be sure, a much closer question whether A.H. has attained sufficient age and maturity for the Court to take his views into account. The Court found him to be a remarkably intelligent, well-spoken and mature 12-year old—but he is still only 12. And, as is hardly surprising given that A.H. has been the subject of an international tug-of-war since age four, his in camera testimony revealed that he harbors conflicting emotions about his family that deeply affect his worldview.
More critically, even to the extent that it is appropriate to take A.H.'s views into account, they do not foreclose his return to England. A.H., like his little brother, bemoaned the weather and the availability of interesting sports activity in England and ticked off a laundry list of reasons why he likes living with his father more than his mother. However, the message that A.H. conveyed most coherently and emphatically is that, above all, he does not want to be separated from S.H. Indeed, A.H. openly admitted that he definitively decided that he did not want to return to England once S.H. informed him that he wanted to stay in New York. A.H. told the Court: "I don't want to be split from my brother. I said that's what I think too. That is what I thought too." (Tr. 354:2-5). And, although S.H. testified cavalierly that his preference to stay in New York has nothing
The Court finds A.H.'s commitment to staying with his brother to be the most compelling testament possible to A.H.'s maturity. These two children have long been the only constant presence in one another's lives, and they operate as a team. A.H. indicated that he comprehends this reality, and made his position very clear to the Court: although he has expressed a preference to remain in the United States now, this preference will evaporate if S.H. returns to England. A.H., in other words, has expressed a sincere preference to remain in the United States, but certainly not an unequivocal objection to his return to the United Kingdom. Thus, A.H.'s viewpoint, as mature as it is, cannot be an adequate basis for this Court to "disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return." Yang, 499 F.3d at 279.
For the foregoing reasons, the Court finds that respondent has not shown that any exception to mandatory return pursuant to the Hague Convention applies in this case. Accordingly, S.H. and A.H. must be returned to England.
Pursuant to Article 26 of the Hague Convention and 42 U.S.C. § 11607(b)(3), any court that orders the return of a child under the Convention "shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. § 11607(b)(3). Respondent has not claimed or established that such an order would be "clearly inappropriate." Further, the fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Convention's fee provision. See, e.g., Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 970-71 (N.D.Ohio 2008); Antunez—Fernandes v. Connors—Fernandes, 259 F.Supp.2d 800, 816-17 (N.D.Iowa 2003).
Accordingly, petitioner is directed to file, on or before June 21, 2010, a proposed judgment with an itemized bill of fees and costs. In preparing its fee application, petitioner's counsel is asked to recall its commitment to be "mindful of both the fact[s] that the primary reason for [counsel] accepting this engagement was to provide a public service, and that, upon information and belief, [r]espondent does not have vast resources." (Petitioner's Post— Trial Mem. at 25). On or before June 28, 2010, respondent may file any objection or exception along with sworn documentary proof establishing, based on respondent's financial position or otherwise, that ordering payment of such claimed expenses would be "clearly inappropriate." Any reply by petitioner must be filed on or before July 6, 2010. Any request for a fact hearing as to any of these matters must be filed on or before June 30, 2010.
VITALIANO, District Judge.
On May 13, 2009, petitioner Felicia Haimdas initiated this action by filing a
Pursuant to Rule 62(c) of the Federal Rules of Civil Procedure, a district court may stay enforcement of a judgment while an appeal is pending. A party seeking a stay pending appeal under Rule 62(c) bears a "difficult burden." United States v. Private Sanitation Indus. Ass'n, 44 F.3d 1082, 1084 (2d Cir.1994). Four factors are relevant in determining whether to grant a stay pending appeal: (1) substantial injury to the party opposing a stay if one is issued; (2) irreparable injury to the movant if a stay is denied; (3) the likelihood of success on the merits on appeal; and (4) the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987); see also In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir.2007). The factors should be considered on a "sliding scale," such that a greater showing on one excuses a lesser showing on another. See Thapa v. Gonzales, 460 F.3d 323, 334-35 (2d Cir.2004).
Although respondent generally posits that there is a high likelihood of success on the merits of his appeal due to "substantial questions regarding the main issues in this proceeding," he makes no effort to specify what he perceives those "substantial questions" to be. The thrust of respondent's argument is that he will suffer irreparable harm if the Children return to England now, because the outcome of his appeal will be mooted. The Court notes that, while the Second Circuit has not directly addressed this issue, at least two other circuit courts have held that an appeal from a decision under the Hague Convention does not become moot merely because a child is returned to the custody of the petitioner in a foreign country, and at least one has reached the opposite conclusion. Compare Whiting v. Krassner, 391 F.3d 540, 545 (3d Cir.2004) (return did not moot appeal); Fawcett v. McRoberts, 326 F.3d 491, 496-97 (4th Cir. 2003) (same) (abrogated on other grounds, Abbott v. Abbott, ____ U.S.____, 130 S.Ct. 1983, 2009, 176 L.Ed.2d 789 (2010)) with Bekier v. Bekier, 248 F.3d 1051, 1055 (11th Cir.2001) (return did moot appeal because
In Fawcett, whose logic the Third Circuit substantially adopted in Whiting, the Fourth Circuit acknowledged that, in some cases, "once an action has been taken there is no way to unscramble the egg," but observed that "no law of physics would make it impossible for [petitioner] to comply with an order by the district court that she return [the child] to the United States" following a reversal and remand. 326 F.3d at 496 (internal quotation marks omitted) (distinguishing B & B Chemical Co., Inc. v. United States EPA, 806 F.2d 987, 989 (11th Cir.1986) (holding that a challenge to the execution of a warrant to enter property was moot because the warrant had already been executed), and Univ. of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175 (1981) (holding that an appeal of a court order compelling university to provide student with signlanguage interpreter was moot because the interpreter had been provided and the student had graduated)). The Fourth Circuit observed that an enforcement mechanism existed because the courts of the United Kingdom are required by statute to recognize another contracting state's Hague Convention orders, and reasoned further that, even if the foreign court were not subject to that requirement, the petitioner might nevertheless comply with an order of return issued by the American district court of her own volition and could be held in contempt by the district court if she did not. See id. at 497.
However, in Navani v. Shahani, 496 F.3d 1121, 1131-32 (10th Cir.2007), the Tenth Circuit found a Hague Convention appeal to be moot, not simply because the subject child had been returned to the custody of the petitioner father in England during its pendency, but because the petitioner had subsequently obtained a new English court order granting him primary physical custody of the child and prohibiting return to the respondent mother. While the Tenth Circuit expressly declined to reach the issue of whether "a child's return to his country of habitual residence fails to moot an appeal," it noted: "Assuming that we had the power to alter the status quo, prior to the issuance of the new custody order, by ordering [the child's] return to the United States, we lost that authority once the English family court altered the terms of the child's custody to forbid [him] from traveling to the United States to have contact with his mother. As the English family court retained jurisdiction at all times over [the child's] custody, and we have never had jurisdiction over the merits of the English family court's custodial decisions, we are powerless to alter the current custodial regime forbidding the very relief that Shahani seeks: return of the child to the United States." Id. at 1132.
In an oft-quoted passage, the Sixth Circuit cautioned that: "Staying the return of a child in an action under the Convention should hardly be a matter of course. The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court." See Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir.1996). This Court finds itself very much in harmony with the Sixth Circuit. As a result, balancing all of the factors outlined in Hilton, supra, the Court is inclined to deny a stay pending appeal.
Nevertheless, with emphasis on irreparable harm, a full and complete analysis of the appropriateness of a stay pending appeal cannot be complete without an answer to the question open in this Circuit as to whether any appeal would be effectively
As a matter of judicial economy and efficiency, the Court reserves ruling on petitioner's request for attorneys' fees and bill of costs at this time. In the event that an appeal might result in the judgment being vacated, any award pursuant to 42 U.S.C. § 11607(b)(3) would be vacated as well. Conversely, if respondent's appeal is ultimately unsuccessful, petitioner may be entitled to recover additional fees and costs. Indeed, petitioner foresees this possibility and has already made a preemptive request for leave to supplement her fee application post-appeal to reflect any future legal fees, as well as any return-related expenditures that petitioner may be forced to make herself due to respondent's recalcitrance (e.g., the Children's plane fare). And, in any event, costs will not be taxed by the Clerk of the Court during the pendency of any appeal. See E.D.N.Y. Local Rule 54.1(a). The Court therefore defers ruling on petitioner's fee application until respondent's appeal is decided. See, e.g., Whallon v. Lynn, No. 00-11009, 2003 WL 1906174 (D.Mass. Apr. 18, 2003) (ruling on Hague Convention fee application after appellate court affirmed order of return); see generally, e.g., Fed. Ins. Co. v. PGG Realty, LLC, 06-cv-2455, 2010 WL 1253176 (S.D.N.Y. Mar. 24, 2010) (ruling on fee motion that had been stayed by the court while the underlying decision was on appeal); Diplomatic Man, Inc. v. Brown, No. 05-cv-9069, 2007 WL 2827125 (S.D.N.Y. Sept. 28, 2007) (same).
Pursuant to the Memorandum and Order entered in this action on June 9, 2010, it is
ORDERED and ADJUDGED that the Petition is hereby granted and the Children shall be returned to the United Kingdom in accordance with this Judgment; and it is further,
ORDERED and ADJUDGED that respondent, or any other person having actual control of the Children here in the United States, shall return the Children to the United Kingdom, to be accompanied by petitioner's father, Mac Mahabal, or another relative and/or guardian mutually agreed upon and designated by the parties, on a flight departing from New York's John F. Kennedy Airport to London's Heathrow Airport between the dates of July 16, 2010 and July 30, 2010. The flight shall be mutually agreed upon by petitioner and respondent, and one-way tickets for the Children and their designated chaperone shall be purchased for that flight by respondent pursuant to 42 U.S.C. § 11607(b)(3), no later than seven (7) days prior to the scheduled departure date of the flight. The Children shall be handed over to their designated chaperone no later than three (3) hours prior to the flight's scheduled departure time as of the date ticket reservations are made; and it is further,
ORDERED that enforcement of this Judgment is stayed until July 8, 2010, solely for the purpose of permitting respondent to apply to the Second Circuit Court of Appeals for an emergency stay pending appeal and an expedited appeal; and it is further
ORDERED that, within fifteen (15) days of disposition of respondent's appeal by the Court of Appeals, petitioner shall submit a letter to the Court requesting to renew, withdraw, amend/supplement or continue the stay of her fee application at that time. Such letter shall be filed electronically on the case docket and served on respondent. Any response by respondent must be likewise filed and served within five (5) days of petitioner's letter.
This constitutes the final judgment of this Court. Following the resolution of respondent's appeal, any appropriate order awarding costs and fees to petitioner pursuant to 42 U.S.C. § 11607(b)(3) may be entered separately. Pending appeal, the Court retains jurisdiction over this case to permit any modification of the judgment circumstances require and to ensure the judgment's enforcement.
