USA – FEDERAL – CROLL – 1999 (Return Ordered) (Undertakings) CROLL v CROLL. The mother takes the child to the United States. The father files under the Hague Treaty for the return. The court finds that the child was wrongfully removed from her habitual residence and orders the child returned. The parties agreed on “appropriate undertakings’ that would be in effect until the parties appeared before the Hong Kong courts for a final judgment concerning custody and support.
Croll v Croll (S.D.N.Y. 1999)66 F.Supp.2d 554
19 International Abduction [USA 1999]
===========================================================
UNITED STATES DISTRICT COURT
S.D. New York
No 99 Civ. 3566 (SHS)
19 Oct 1999
Stephen Haladay Croll, Petitioner
v.
Mei Yee Croll, Respondent
Counsel for Petitioner:
Robert D. Arenstein
New York City, NY
Counsel for Respondent:
Lea Haber Kuck, Skadden Arps Slate Meagher & Flom LLP
New York City, NY
<* page 556>
OPINION & ORDER
Stein, District Judge.
001 This action was brought pursuant to the Convention on
the Civil Aspects of International Child Abduct1on entered
into at The Hague in 1980, T.I.A.S. No, 11670, 1343 U.N.T.S.
89 (“Hague Convention” or “Convention”) and Implemented in
the United States by the international Child Abduction
Remedies Act (ICARA), 42 U.S.C. 11601 et seq. Petitioner
seeks an order directing his former wife to return their
minor child to Hong Kong, her “habitual residence.”
Respondent has moved pursuant to Fed.R.Civ.P. 12(b) to
dismiss the petition on the grounds that this Court lacks
subject matter jurisdiction and the petition fails to state
a claim for relief. Pursuant to the mandate for expedition
set forth in the Convention, see Art. 11, on June 30, 1999
and July 6, 1999, this Court heard argument and received
evidence relating to petitioner’s application and
respondent’s motion. For the reasons set forth below, this
Court finds that it has jurisdiction over this matter and
that an order of return is justified.
BACKGROUND
002 Stephen Halladay Croll and Mei Yee Croll were married
in Hong Kong in 1982. (Tr. at 31). FN01 In 1990, their
daughter Christina was born in Hong Kong, where she lived
with both parents until they separated in early 1998. . (Tr.
at 31-32, 46). Thereafter, Christina continued living with
her mother in Hong Kong (Tr. at 109); her father, who also
continued to live there, visited her regularly. (Tr. at 36).
Mr. Croll testified that he saw Christina approximately two
to three times each week and accompanied her to after-school
activities. (Tr. at. 36-37). Ms. Croll testified that Mr.
Croll saw Christina approximately two times: each month.
(Tr. at 112).
003 Because all of her grandparents live in the United
states, Christina has visited the United States on several
occasions,
<* page 557>
usually for a few weeks during the summertime and during
school holidays. (Tr. at 46-48, 66).
004 Sometime in 1998, Mr. Croll commenced a divorce
action in the District Court of Hong Kong, Special
Administrative Region, Matrimonial Causes. (Tr. at 33). Ms.
Croll did not take part in that proceeding, and the parties
dispute whether Ms. Croll ever received legally sufficient
notice of its pendency. (Tr. at 85-86). On February. 23,
1999, the Hong Kong court issued an interim order granting
Ms. Croll “custody, care and control” of Christina, and
granting Mr. Croll “reasonable access” to Christina. See
Pet. Exh. 2. The order also directs that Christina
be not removed from Hong Kong without leave
until she attains the age of 18 years but
provided that if either parent to (sic] give a
general undertaking to the Court to return the
said child to Hong Kong when called upon to do
so, and unless otherwise directed with the
written consent of the other parent, that
parent may remove the said child from Hong Kong
for any period specified In such written
consent.
005 In addition, the order permitted either parent to
request that the immigration department of Hong Kong not
issue a passport for Christina to go abroad with out that
parent’s consent. The February 23, 1999 order provides that
it is to become final in six weeks unless cause is shown
otherwise. Ms. Croll claims not to have had any actual
notice of that order prior to the commencement of this Hague
Convention action. (Tr. at 113-114). On May 8, 1999, the
Hong Kong court issued an order requiring Mr. Croll to pay
U.S. $1,000 per month to Ms. Croll for child support.
006 Mr. Croll testified that after he returned to Hong
Kong from a business trip on April 7, 1999, he went to pick
up Christina from her school, but was told by Christina’a
teacher that his daughter had not been in class for two
days. FN02 (Tr. at 37). Mr. Croll then went to Ms. Croll’s
apartment; not only did he find it empty of all furniture,
but the housekeeper informed him that Christina and her
mother had “left.” FNO3 (Tr. at 37-88). Mr. Croll deduced
from that statement that they had gone to the United States.
(Tr. at 38). According to Mr. Croll he called Ms. Croll’s
parents in New York several times in an attempt to locate
Christina, but his calls went unanswered. (Id.). On April
22 Mr. Croll, on the advice of his attorney, filed a missing
person report with the police in Hong Kong. (Tr. at 14-15,
40, 53). Shortly thereafter, he retained U.S. counsel and
filed this application pursuant to the Hague Convention.
007 At the evidentiary hearing on the petition, Ms. Croll
testified • that she, and Christina arrived in the United
StateS on April 2, (Tr. at 63), and that Mr. Croll had
previously consented to her relocating to the United States
with Christina. (Tr. at 65, 115-116). Mr. Croll, however,
denied having done so, although he conceded that he and his
ex-wife did discuss this possibility before they separated.
(Tr. at 36, 38, 48). According to Ms. Croll, she arrived in
New York with the intention of having Christina interview at
schools here and, if Christina were admitted, having her
attend school for a few weeks for a “tryout period,” and
then return to Hong Kong for the summer, and arrive back in
New York this coming fall. (Tr. at 63, 68, 69). Ms. Croll
testified that she and Christina had purchased return
airplane tickets to Hong Kong for June 10,1999. (Tr. at 69).
<* page 558>
008 After arriving in New York, however, she discovered
that her ex-husband had terminated the lease to the Hong
Kong apartment where she had been living with Christina and
had a warrant issued for her arrest upon her return to Hong
Kong. As a result, she decided to remain in New York. (Tr.
at 69-70, 85-87). On cross examination, however, Ms. Croll
did concede that “[in] the back of [her] mind”, she had the
intention of permanently remaining in the U.S. when she
arrived here on April 2. (Tr. at 127). Mr. Croll denies that
he took steps to have any warrant issued for Ms. Croll’s
arrest. (Tr. at 42).
009 On April 8, 1999, Ms. Croll commenced at least one
action seeking orders of protection, custody, and support in
New York State court (Tr. at 88); those proceedings have
been stayed pending the outcome of this action.
DISCUSSION
010 The Hague Convention was adopted by signatory nations
“to protect children internationally from the harmful
effects of their wrongful removal, or retention and to
establish procedures to ensure their prompt return to the
State of their habitual residence.” Hague Convention,
Preamble. On September 1, 1997, the Convention entered into
force between the United States and Hong KOng. The
Convention prohibits a court where, a petition is brought
from ruling on the merits of the underlying custody dispute.
See 42 U.S.C. 11601(b)(4); Convention Arts. 16, 19. Those
matters are reserved for the courts of the child’s habitual
residence, which are presumptively best able to determine
and assess what is in the child’s best Interest. See Blondin
v. Dubois, 189 F.3d 240, 246 (2d Cir.1999) (citing Friedrich
v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) (Friedrich
I).; Cibtola v. Fiocca, 86 Ohio Misc.2d, 24, 684 N.E.2d
763, 769-770 (1997). This Court’s duty pursuant to the
Convention is to determine whether Christina has been
wrongfully removed from the country of her habitual
residence within the meaning of the Convention and, if so,
to order that Christina be returned to Hong Kong unless
certain narrowly-defined exceptions are present. See
Convention, Arts. 12, 18; Rydder v. Rydder, 49 Fed.3d 369,
372 (8th Cir.1995); Friedrich I, 983 F.2d at 1400.
I. Wrongful Removal
011 In a petition brought pursuant to the Hague
Convention, the petitioner has the burden of establishing by
a preponderance of the evidence that the minor child was
“wrongfully removed, or retained within the meaning, of the
Convention.” 42 U.S.C. 11603(e)(1)(A). A removal or
retention is. “wrongful” if “(a) it is in breach of rights
of custody attributed to “person, an institution or any
other body, either jointly or alone, under the law of the
State in which the child was habitually resident immediately
before the removal or retention; and (b) at the time of
removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but
for the removal or retention.” Hague Convention Art. 8.
Where a child has been wrongfully removed and proceedings
have been commenced within one year from the, date of the
wrongful removal, the Court “shall order the return of the
child forthwith.” Id. at Art. 12.
012 There is no dispute that Christina’s habitual
residence is in Hong Kong; she has lived there continuously
since her birth. See, e.g., Friedrich I, 983 F.2d, at 1402
(child’s habitual residence was Germany where he resided
exclusively until his contested removal). The Convention,
however, only provides the remedy of return of the child
when that child has been removed in violation of the
non-consenting parent’s right of custody, and does not
provide this relief if the non-consenting parent had only a
right of access, rather than a right of custody. See, e.g.,
Bromley v. Bromley, 80 F.Supp.2d 857, 860-861 (E.D.Pa.
1998); Viragh v. Foldes, 415 Mass. 96 [612 N.E.2d 241,
246-24]7 (1993). A right of custody may exist by reason of
<* page 559>
(1) operation, of law; (2) a judicial or administrative
decision; or (3) agreement having legal effect under the law
of that State. Convention Art 8. Whether a parent was
exercising lawful custody rights over a child at the tune of
removal must be determined pursuant to the law of the
child’s habitual residence. See Convention Art. 8; Friedrich
I, 988 F.2d at 1402.
013 In support of his claim that he has a right of
custody within the meaning of the Convention, Mr. Croll
relies on the Interim order issued by the Hong Kong court on
February 23 which provides that Christina may not be removed
from Hong Kong before her 18th birthday without either leave
of court or the written consent of the other parent. Ms.
Croll, on the other hand, contends that that order on its
face simply provided Mr. Croll with a right of access to
Christina, and not a right of custody and, therefore, the
petition must be denied.
014 The right to determine a child’s place of residence
is tantamount to a “right of custody” within the meaning of
the Convention. See Convention Art. 5. Although there is a
dearth of federal case authority, several courts have held
that a provision restricting a custodial parent’s right to
remove a child from a geographical area vests the
non-custodial parent with a “right of custody” within the
meaning of the Convention. See e.g., Janakakis-Kostun v.
Janakakis, – S.W.3d -, – No. 98-0259, 1999 WL 158869, at 5
(Ky. Mar. 19, 1999) (temporary order granting custody to
respondent and prohibiting removal of child from Greece gave
petitioner a right of custody within the meaning of the
Convention); David S. v. Zamira S., 151 Misc.2d 680, 635,
574 N.Y.S.2d 429, 432 (1991) (relying in part on
respondent’s contemptuous conduct in removing children in
violation of order prohibiting removal of the children from
Ontario in deciding that petitioner had a right of custody
within the meaning of the Convention); B v. B., 3 W.L.R. 865
(U.K. Ct.App. 1993) FN04 4 (granting order for return of
child where court had a right of “custody by virtue of an
interim custody order prohibiting custodial parent from
removing child from Ontario); C. v. C., 1 W.L.R. 654 (U.K.
Ct.App.1989) (providing that: “right to give or withhold
consent to any removal of the child from Australia, coupled
with the implicit right to impose conditions, is a right to
determine the child’s place of residence, and thus a right
of custody within the meaning of Arts 3 and 5 of the
convention”); Re H., 2 F.L.R. 439 (U.K.Fam.Ct. 1990)
(removing child from Ontario in violation of order granting
respondent interim custody and prohibiting removal of child
from Ontario withOut leave of court was in breach of
respondent’s rights of custody and wrongful within meaning
of Convention).
015 As set forth above, the Hong Kong order dated
February 23, 1999 provides that Christina may not be removed
from, Hong Kong before her 18th birthday without either
leave of court or both parents’ consent. Accordingly, this
Court determines that Mr. Croll had a right, along, with
respondent, to determine Christina’s place of residence and
he had a corresponding right of custody within the meaning
of the Convention. Christina’s removal from Hong Kong-her
habitual residence-was in violation of her’ father’s right
of custody and was, therefore wrongful pursuant to the
Convention.
II. Defenses
016 Ms. Croll urges that even if this Court were to
determine that her former husband has a right of custody
pursuant to the Convention, an order directing that
<* page 560>
Christina, be returned to Hong Kong should not issue because
(1) Mr. Croll was not exercising his right of custody at the
time of Christina’s removal; (2) Mr. Croll consented to
Christina’s removal; and (3) returning Christina to Hong
Kong would place Christina at grave risk of harm. All of
these exceptions to the Convention are to be narrowly
construed in order not to frustrate the objectives of the
Convention. See 42 U.S.C. 11601(a)(4).
A. Exercise of Custody Right
017 Ms. Croll claims that even if Mr. Croll had a “right
of custody” within the meaning of the Convention, he failed
to exercise that right and, thus, an order of return should
not issue. See Convention Art. (3)(b). Ms. Croll has the
burden of establishing this defense by a preponderance of
the evidence. 42 U.S.C. 11603(e)(2)(B). Absent evidence
that
constitute[s] clear, and unequivocal
abandonment of the child [,] [o]nce [the court
determines that the parent exercised custody
rights in any manner, the court should
stop-completely avoiding the question whether
the parent exercised the custody rights well or
badly. These matters go to the merits of the
custody dispute and are, therefore, beyond the
subject matter jurisdiction of the federal
courts.
Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)
(Friedrich II); see also Freier v. Freier, 969 F.Supp. 436,
441 (E.D.Mich 1996); Sampson v. Sampson, 267 Kan. 175 [975
P.2d.121l, 1218 (1999).
018 Despite the parties disagreement regarding the
frequency of Mr. Croll’s visits with Christina, he was
exercising his right of custody at the time that Christina
was removed from Hong Kong. Even if this Court were to
credit Ms. Croll’s testimony and assume that Mr. Croll
visited Christina only twice per month, this evidence would
be sufficient to find that Mr. Croll had not abandoned
Christina and thus, was exercising his right of custody
prior to Christina’s leaving Hong Kong. See, e.g. Sampson,
975 P.2d at 1217-1218. Consequently, petitioner has not
relinquished his right of custody by falling exercise that
right.
B. Consent
019 Ms. Croll also contends that Mr. Croll consented to
her taking Christina to the United States to live. To
establish this defense, Ms. Croll must show by preponderance
of the evidence that Mr. Croll consented to or subsequently
acquiesced in the removal of Christina from Hong Kong. 42
U.S.C. 11603(e)(2)(B) see Friedrich II, 78 F.3d at 1069.
020 First, Ms. Croll claims that because her former
husband never exercised his right under the Hong Kong
interim order to request that the immigration department not
issue Christina a passport without his consent, he impliedly
consented to Christina’s removal from Hong Kong. That
argument is not persuasive. Krishna v Krishna, No. 91-0021,
1997 WL 195489, al 4 (N.D.Cal. Apr. 11, 1997), on which
respondent relies, is distinguishable. In that case the
court found that Mr. Krishna “freely provided” Ms Krishna
with their child’s passport after Mr. Krishna spoke with one
of Ms. Krishna’s relatives in the United States who informed
him of Ms Krishna’s intention to come to the United States.
No such facts are present here
021 In this case, Ms. Croll testified that she had always
had control of Christina’s passport. (Tr. at 66). Moreover,
Mr. Croll testified that he never requested Christina’s
passport from Ms. Croll no requested that the immigration.
department not issue Christina a passport because he had no
reason to believe thai Christina would be taken abroad
without his knowledge and consent. (Tr. at 52-63) Mr.
Croll’s failure to avail himself of the protections afforded
by the February 23 order, while perhaps imprudent in hind.
sight, does not establish by a preponderance of the evidence
that Mr. CroLl impli-
<* page 561>
edly consented to Christina’s removal from Hong Kong.
021 Moreover, although both parties testified that prior
to separating they had discussed relocating to the United
States, these discussions are irrelevant to the issue of
whether Christina’s father consented to her relocation to
the United States subsequent to the separation. While Ms.
Croll testified that she and Mr. Croll had several “casual
discussions” after they separated about Christina moving
with her to the United States, Ms. Croll could only recall
one such conversation in any detail. (Tr. at 116-117).
Specifically, on, March 2, 1999, Mr. Croll allegedly agreed
that it would be beneficial for Christina to live in the
United States. (Id.) Mr. Croll, how ever, testified that he
did not agree to that. (Tr. at 36, 38, 48). Given the
conflicting testimony of Mr. and Ms. Croll, along with the
fact that Mr. Croll filed this petition pursuant to the
Hague Convention for Christina’s return within a few weeks
of his daughter’s departure from Hong Kong, this Court finds
that Ms. Croll has not established by a preponderance of the
evidence that Mr. Croll consented to Christina’s removal
from Hong Kong.
C. Grave Risk
022 Ms. Croll also invokes the exception contained within
Art. 13(b) of the Convention that provides that a child need
not be returned to the country where the child is habitually
resident if “there is a grave risk that [the child’s] return
would expose the child to physical or psychological harm or
otherwise place the chi1d in an intolerable situation.”
Convention Art. 13(b). A party seeking to invoke this
exception must prove the applicability of the exception by
“clear and convincing evidence.” 42 U.S.C. 11608(e)(2)(A).
It Is well-established that the grave risk exception is
narrowly construed. See 42 U.S.C. 11601(a)(4); see also
Blondin, 189 F.8d 240, 246; Nunez-Escudero v. Tice-Menley,
58 Fed.3d 374, 376 (8th Cir. 1995) (citing Rydder, 49 F.3d
at 372; Janakkis-Kostun, — S.W.3d —, —, 1999 WL
153369, at 6. In Friedrich II, the Sixth Circuit limited
the circumstances under which the Article 13(b) exception
applies to only when:
return of the child puts the child in imminent
danger prior to the resolution of the custody
dispute-e.g., returning the child to a zone of
war, famine, or disease [or when there has
been] serious abuse or neglect, or
extraordinary emotional dependence [and] the
court of the country of habitual residence, for
what ever reason, may be incapable or unwilling
to give the child adequate protection.
78 F.3d at 1069.
023 There is no dispute 1that the first of the
circumstances set forth in Friedrich II does not apply here:
Hong Kong is not a zone of “war, famine, or disease.”
Moreover, respondent has failed to demonstrate by clear and
convincing evidence that returning Christina to Hong Kong
would subject the child to a grave risk of harm or place
her in an intolerable situation.
024 Ms. Croll testified to four specific instances to
support her reliance on the Article 13(b) exception. First,
she testified that on September 28, 1998, Mr. Croll
assaulted her. (Tr. at 89, 98-99). Ms. Croll filed a
complaint with the police relating to this incident, but the
charges were dismissed due to an insufficiency of evidence.
(Tr. at 42, 94, 96, 97-98). Although each party’s version of
this event differs, it is undisputed that Christina was not
present during this incident. (Tr. at 90).. The cases
applying the Hague Convention make manifest that the Article
13 exception is only applicable when the child, as opposed
to a parent, would be placed in danger if she were returned.
See Nunez-Escudero, 58 F.3d at 376-377; In re Walsh 81
F.Supp.2d 200, 205 (D.Mass. 1998) (“It is thus apparent that
the grave threat contemplated by the Convention must be
directed at the children who are the subject of the
petition”) (citing Rechsteiner v. Kendell, 80 A.C.W.S.3d
1195 (Ont.Fam. 1998)); Ciotola, 684 N.E.2d at
<* page 562>
769 (insufficient evidence that child was at risk where
child’s mother testified that father had explosive temper
and that she herself was victim of domestic abuse).
Consequently, because this incident concerned solely Ms.
Croll, even if this Court were to credit Ms. Croll’s version
of events, it would not support an ArtIcle 13 defense.
025 Second, Ms. Croll testified that on one occasion in
November 1998, Mr. Croll forcibly dragged her Into the
bedroom where they struggled in front of Christina before
their housekeeper intervened to stop the fight. (Tr. at
101). Third, Ms. Croll testified that, on another occasion,
while bathing Christina, she observed a red handprint mark
on her daughter’s thigh that she had reason to believe was
caused by Mr. Croll. (Tr. at 102-03). Finally, on one
occasion in early 1999, when Christina expressed a
reluctance to accompany Mr. Croll to Cape Cod for a visit,
Mr. Croll forcibly placed his hands on Christina’s shoulder
and poke to her in a forceful manner. (Tr. at 105-106). Ms.
Croll conceded that she has never filed a police report on
behalf of Christina and she has not made any allegations of
abuse against her husband on behalf of her daughter in Hong
Kong or the pending New York State matters prior to the
hearing held before this Court on July 6. (Tr. at 89, 119,
134). Thus, Ms. Croll has not demonstrated by clear and
convincing evidence that Christina would be placed in “grave
risk” were she to be returned to Hong Kong. See, Walsh 31
F.Supp.2d at 206; Janakakis, — S.W.3d —, — 1999 WL
153369 at 6. Moreover, Ms Croll has adduced no evidence to
demonstrate that the Hong Kong courts would be incapable or
unwilling to protect Christina adequately should she be in
danger of being placed in a situation where she was at risk.
026 Because Christina has been wrongfully removed from
her habitual place of residence, and because none of the
exceptions contained within the Convention apply Christina
should be returned to Hong Kong pursuant to ICARA and the
Convention.
III. Undertakings
027 In light of this Court’s determination that
petitioner’s, application should be granted directing that
Christina be returned to Hong. Kong, the parties were
requested to attempt to agree on appropriate undertakings by
petitioner to ensure that Christina does not suffer any
short term harm pending disposition of an custody and
support dispute in the Hong Kong courts. See, e.g., Feder v.
Evans-Feder, 68 F.3d 217, 226 (3d Cir.1996); Walsh, 31
F.Supp.2d at 207. Any such undertakings would not affect the
Hong Kong courts’ ability to enter final orders concerning
custody and support arrangements. However, the parties were
unable to agree on specific undertakings.
028 Accordingly, the Court hereby conditions Christina’s
return to Hong Kong on respondent’s compliance with the
following undertakings:
(1) Mr. Croll shall pay the U.S. $1,000
support for Christina each month pursuant to
the ex parte order of the Hong Kong court dated
May 3, 1999;
(2) Mr. Croll shall pay for airline tickets to
Hong Kong for Mei Yee Croll and for Christina;
and
(3) Mr. Croll shall pay tuition and fees for
the current academic year for the school that
Christina attended during the 1998-1999
academic year.
029 Mei Yee Croll shall continue to have “custody, care
and control” of Christina and Stephen Halladay Croll shall
continue to have “reasonable access” to Christina pursuant
to the February, 23, 1999 order of the Hong Kong court. In
addition, nothing in this Order shall be construed to
prevent either petitioner or respondent from seeking a,
modification of the ex parte orders of the Hong Kong court
dated February 23, 1999 and May 3, 1999 providIng for
custody and support for Christina and maintenance for
respondent.
<* page 563>
CONCLUSION
For the foregoing reasons respondent’s motion pursuant to
Fed.R.Civ.P. 12(b) to dismiss the petition is denied and
petitioner’s application for an order pursuant to the Hague
Convention directing the return of the parties’ minor
daughter to Hong Kong is hereby granted upon condition that
petitioner provide the undertakings set forth above.
Foot Notes
————————-
1. Reference to “Tr.” are to the transcript of the
hearings held in this proceeding.
2. Ms. Croll testified that Christina was not at school
on April 7 because her school was in recess from
April 1 through April 12. (Tr. at 64). Mr. Croll
disputes that, (Tr. at 38). It is unnecessary for
this Court to resolve this factual dispute.
3. Mr. Croll testified that, after leaving Christina’s
school, he went to. Ms. Croll’s apartment and
discovered that the apartment had been emptied. (Tr.
at 37-38). Ms. Croll testified that when she left
for the U.S. with Christina, she brought only two
suitcases and did not empty the apartment of its
furniture. (Tr. at 111).
4. Although decisions of a court in a foreign country
have no precedential weight, such decisions are
properly consulted when construing the terms and
scope of an international convention. See Air France
v. Saks, 470 U.S. 392, 404 [1O5 S.Ct. 1338, 1345, 84
L.Ed.2d 289 (1985) (determIning what constitutes an
“accident’ within the meaning of the Warsaw
Convention) (citing Benjamins v. British European
Airways, 572 F.2d 913, 919 (2d Cir.1978)).