USA – CT – PANAZATOU – 1997 PANAZATOU v PANAZATOU. The court found that the habitual residence of the child was Greece. They also concluded that there was sufficient evidence to suggest a grave risk of psychological harm to the child if he was returned without the mother. The court attempted to arrange a conference call with a Greek judge to see if undertakings agreed to by the parties involved would be honored in Greece.
Panazatou v Panazatos (Conn.Super 1997)No. FA 960713571S
22 International Abduction [US 1997]
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Superior Court of Connecticut.
Kathleen Patricia PANAZATOU
v.
Irinarchos Ericos PANAZATOS
No. FA 960713571S.
Sept. 24, 1997.
INTERIM MEMORANDUM OF DECISION RE: JURISDICTION UNDER HAGUE
CONVENTION
BARALL.
001 This case requires the Court to determine whether the
Courts of Greece or the Connecticut Superior Court has
jurisdiction to determine the custody of a three-year-old
child. The controlling laws in this case are “The 1980
Hague Convention on the Civil aspects of International Child
Abduction” and “The International Child Abduction remedies
Act” 42 USC 1160 et seq., our countries statute which
implements the Hague Convention.
002 Procedurally, this case came to this Court when the
plaintiff wife, Kathleen Patricia Pantazatou, started a
divorce action in Connecticut in October of 1996, together
with an ex parte request for custody of the one minor child
Nicole. This ex parte order was granted subject to notice
to the defendant husband in Mykonos, agreed. Subsequently,
the defendant husband brought a habeas corpus action to
prevent the child’s removal from the State of Connecticut
pending a hearing on his Application for return of the child
to Greece. That application was filed with the Connecticut
court in accordance with the Hague Convention. A motion
for appointment of counsel by plaintiff was also filed and
approved and that counsel has been instrumental in making
sure the child was protected in the context of the Hague
Convention standards.
003 There are two sections of the Hague Convention
applicable to this case.
004 First, Article 3 which provides that the Convention
shall apply to any child who was “habitually resident” in a
contract state immediately prior to the breach of custody or
access. Any applicant seeking the return of the child
under that article must first prove by a preponderance of
the evidence that a child under the age of sixteen was a
habitual resident of the country in order to obtain the
return of the child to that country for custody
determination.
005 Second, Articles 13(b) provides, however, that even if
a child has been habitually resident in a country that child
need not be returned to that country if there is grave risk
that the child’s return would expose the child to physical
or psychological harm or, otherwise, place the child in an
intolerable situation. Therefore, if an applicant proves
by a preponderance of the evidence that the child has been
habitually a resident in a particular country, then the
respondent must establish by clear and convincing evidence
that there is a grave risk of the child’s return would
expose the child to physical or psychological harm in order
to prevent the return of the child to the country of
habitual residence.
FACTS
006 Petitioner/defendant, Irinarch Pantazatos (father) a
Greek citizen met the respondent/plaintiff, Kathleen
Patricia Pantazatou (mother), an American citizen, during a
vacation she took in Greece in 1987. They were
subsequently married in the United States on January 28,
1989 and both moved to the island of Mykonos, Greece after
the marriage. The parties continued to reside in Mykonos
but had substantial contact with the United States; for
example, the husband had a social security card here,
driver’s license, bank account and he even had work here for
a period of time. After a period of time, the mother
became pregnant and came back to the United States with the
approval of the father several months prior to the birth of
their child, Nicole on April 8, 1994. It was agreed by
both parties that the medical care here would be better for
the child.
007 After the birth of Nicole, the mother returned to
Mykonos with the child and Nicole was baptized in Mykonos.
During the ensuing three years, the child shuttled back and
forth between Connecticut and more particularly Cromwell and
Mykonos, Greece. Nicole resided in Cromwell from December
9, 1994 through February 7, 1995. She resided with her
mother in Cromwell from June 21, 1995 through July 18, 1995.
They returned to Cromwell on November 8, 1995 and remained
there until February 14, 1996. All those residences were
with the approval of the father.
008 On September 11, 1996, however, mother returned to
Connecticut with daughter without the approval of the
father, in fact, without his knowledge. All other times
other than specified, Nicole, the child, resided in Mykonos
with her mother and father.
009 The Court heard testimony of Dr. Anne Price, a child
psychiatrist, that separation of the child from the mother’s
care child, both short and long term. The Court finds that
testimony credible. The Court heard further testimony
concerning plaintiff’s wife fear of her husband’s anger and,
the court finds that those fears were real to the wife.
The Court also finds that the wife had no means of
supporting herself in Mykonos primarily because of the
citizenship issue. That concern was conceded by the husband.
The husband has been the sole means of the support of the
family. He testified that he earned the equivalent of
$100,000 U.S. dollars although his income tax returns
submitted later reflect an income of about 10 percent of
that.
010 The Court finds that the father registered the family
as being resident in Athens only after the separation of the
parties in September of 1996 and further that his
representation in his application under the Hague Convention
that they lived in Athens during the winter months was not
true. It has been represented that a custody action has
been started in Athens by the defendant husband, but there
has been no service on plaintiff. Despite repeated
requests, this Court has not been able to get copies of
those papers even with the assistance of counsel for the
husband. There had been an indication that the plaintiff
would be subject to contempt in court in Greece if she were
to return to Greece despite the lack of notice.
DECISION
011 The first question for the Court to decide is: Did
the petitioner find the proof by a preponderance of the
evidence that the child’s habitual residence was Greece?
The answer is yes. Although there is no question that the
parties intended at some future time to permanently reside
in the United States, habitual residence cannot be confused
with domicile. To determine habitual residence the Court
must focus on the child and examine past experience not
future intentions. Friedrich v. Friedrich, 983 F.2d 1396,
1401 (Sixth Circuit 1993). The greater portion of the
child’s life was spent in Mykonos as well as the seven
months preceding the mother’s departure in September of 1996
without the father’s consent.
012 The second question is: Did the respondent mother
prove by clear and convincing evidence that there was grave
risk of psychological harm of the child if returned to
Greece? The answer is yes. The Court was clearly
convinced that to return the child without the mother would
create a grave risk of psychological harm to the child and
more particularly to remove Nicole back to Greece without
her mother would create greatest risk of serious
psychological harm both short and long term.
013 If the mother has a home in Greece and financial
support and freedom from incarceration pending full
investigation and decision, the risk of psychological harm
to the child would be minimized because the mother can go
with her. This same issue was faced by a British court in
C v. C Court of Appeal, Civil Division 14 December 1968
(1989) to ALL ER 465 (1989), 1FLR 403 (1989) 1WLR 65. That
Court held that the mother in that case couldn’t create the
psychological situation by refusing to go back provided that
the father would give certain undertakings to the British
court and the court of habitual residence, Australia.
Those undertakings required by the British court included
substantial financial guarantees, removal of a threat of
contempt in Australia, medical care, et cetera. That case
was cited with approval in Feder v. Feder, 63 F.3d 217, 226
(Third Circuit) 1995. In the Feder case the appellate
court reversed a lower finding on habitual residence
requiring that court to consider on remand whether or not
Mrs. Feder has shown an unqualified return would be
detrimental to the child. It charged the lower court with
investigating the adequacy of the undertaking of Mr. Feder
to ensure that the child will not suffer harm.
014 This Court has received proposed undertakings from
each party as well as counsel for the child. The Court is
attempting to obtain with the cooperation of all counsel
sufficient information to make appropriate orders of
undertaking that will be given to this Court and the Greek
court as well as the method to ensure its execution. The
court needs to know the reason for the difference between
applicant’s testimony here that he earned $100,000 U.S.
versus his current position taken that his income is only
$10,000. That information is necessary to provide adequate
financial undertakings. That information is being
developed by a lawyer accountant in Greece.
015 This court is attempting to arrange a conference call
to a Judge in Greece similar to conference calls in this
country under our Uniform Child Custody Act. Thhe district coure purpose is
that undertakings will be honored in Greece.
Such an understanding between Judges may obviate the need of
a high bond to insure the fulfillment of any undertaking set
by this court. Although this type of procedure is not
common, it is consistent with the purpose of the Hague
Convention to set an appropriate forum and still protect the
child.
016 This is an interim decision pending the completion of
the undertaking process.